ARRANGING FOR A MEDIATION

The following tips will ensure that you know what to expect from, and are well prepared

for, your first mediation.

Each party is entering into mediation in good faith. Be creative when thinking about ways

to resolve the dispute. Even in a commercial dispute involving money or goods, there are

often many ways in which the matter may be satisfactorily resolved. Consider also what

each party realistically is and is not able to do – it is of no use to agree to a resolution that

is unworkable in practice.

Think about what your real interests are. And think about the other party’s real interests.

For example, you may have a position, but what is your interest?

Think about BATNA/WATNA:

“BATNA” stands for what is the best alternative to a negotiated agreement (outcome)?

On the other hand, “WATNA” stands for what is the worst alternative to a negotiated

agreement (outcome)?

And so, when it comes to mediation, always consider two scenarios if there is no

settlement: both your best course of action as well as the worst that might happen to

you. These two scenarios will help you to understand the importance of negotiating and

settling the dispute on acceptable (not necessarily ideal) terms – this is consistent with the

notion of good faith. Remember, settling any dispute on terms “you can live with” might

not be the optimum terms, but it is likely better than the alternative. In other words, that

would be a solution whereas you did not have a viable one before. 

Good preparation will help you get the most from mediation. This page lists the

steps you can take to prepare for mediation.

Before a mediation, you should:

• Learn about the mediation process

• Think about the issues

• Work out what you want

• Understand your legal rights

• Think about the options for ending the dispute

• Understand your emotions

• Plan how to communicate

• Think about whether you need to take someone with you

• Find out about interpreters

• Gather documents and information 

You should find out everything you can about what will happen in the mediation.

You can ask the mediator or go through Dispute Mediation’s website to learn about

the mediation process we follow and how to prepare.

Take some time to think about the issues you want to talk about at mediation.

Write them down. Think about each issue and why it is important to you.

Some of the issues may be more important to you than others. Make a note of the

issues that are more important to you.

Think about what the other people involved in the dispute might say are the issues.

Will they raise the same issues as you? 

Think about what you want to achieve from the mediation. For example, it might be

important to you to:

• get a financial settlement

• sort out the dispute so you can move on

• maintain a relationship with the other party

• get an apology

• make sure what happened to you does not happen to someone else

• rectify a situation

• change behaviour

• take some action etc

Think about what the other people involved in your dispute may want. Will they

want something different? Are there things you both want? 

If your dispute involves legal rights and responsibilities, you should get legal advice

before mediation so you can make a good decision about any agreement.

Remember, mediation can include discussion of all the issues in your dispute, not

just legal rights. At mediation you can make an agreement that is different to what

a court might decide if that is what you decide together with the other party. 

Once you have worked out the issues in your case, you can think about the options

for dealing with each one. Write down everything you can think of.

Read over each option and think about these issues:

• Be realistic. Is what you want possible?

• Think about what the other side may want. This may help you work out where your

interests and theirs may be the same.

• Think about whether what you want would be possible if you had to go to court. For

example, you may want the other party to apologise. While this could be something

you agree to in mediation, a court will not usually order an apology. You may need

legal advice to help you understand what you are likely to get if you went to court.

It can be a good idea to talk to someone you trust, who is not involved in the

dispute. They might come up with some new options for how to resolve the

problem. 

You may feel angry, hurt, upset or anxious about the dispute. This is normal and

understandable.

You should spend some time thinking about how you feel about the dispute. Write

it down.

Think about how these feelings may affect you in the mediation. Plan for how you

can deal with your emotions if you become upset during the mediation. You could:

• Ask the mediator for a break

• Explain to the other side and the mediator what you are feeling

• Ask to have a support person at the mediation.

Spend some time thinking about how best to talk during the mediation.

Try not to speak angrily or criticise the other party as this may make it harder to

reach agreement. Use calm language. So instead of saying:

"You deliberately made me angry and frustrated".

You could say:

"I have felt very angry and frustrated". 

If you need an interpreter, talk to us. We can arrange an interpreter for you. 

You should gather all the documents that are important to your case and the

information that supports your case. 

The mediator will not look at this evidence, but

it may be helpful to show the other side so they can understand your position.

For information about what to expect at mediation, see About Mediation.

For mediation to take place, both or all parties must participate. Unless there is a court directive, both parties must attend by their own choice.  If one party instigates a mediation, we will then conduct an intake session to understand the issues from their perspective. We will then contact the other party to invite them to participate. We will do our best to convince them of benefits but, if they choose not to a mediation cannot take place unless there is a court directive.

Many mediations can be solved in one session. A session is 3-4 hours. More complex mediations may take a whole day. If the Parties are feeling they are progressing and more time is needed, the medation can be extended on the same day or another date if agreed between the parties.

We have a mix of mediators from various backgrounds and professional qualifications. All our mediators are nationally accredited bound by National Mediator Association Standards (NMAS) and registered with the accredited Australian bodies.

Our mediators are taught how to mediate according to the NMAS latest process and standards. In addition, they are drawing from respective often extensive experience in various industries which are beneficial to providing a wise mediation service. Obviously, each mediator is oriented to niche services and we can recommend a mediator that suits your situation best. Our mediators are associates and professionals from various backgrounds and industries. If a lawyer is required, we will allocate one of our lawyer associates for you. 

Mediation can be stressful and we understand that sometimes having a support person can be helpful. Most mediations go ahead without any party having any support person in attendence.

A support person cannot be someone who has been involved in the dispute in any way. The role of the support person is not to actively take part in the mediation but to support you during the mediation. The mediator will assess whether the support person is suitable and will be helpful in the mediation and not escalate the conflict. Your mediator will need to speak with support people to make sure that they are clear about their role. Mediators can also exclude a support person if their presence is unhelpful to the process of  the mediation. 

A lawyer may also attend the mediation on the same provisos above.

If you are on an online mediation such as Zoom, then you are at your own location. However in-person Mediation involves people being in the same room and discussing issues in a controlled environment. People are expected to listen to each other, be respectful of one another and allow the mediators to guide the process.  During the mediation, both parties will be invited to have separate, private sessions with the mediators.

You will not normally require any legal advice or representation during the mediation session. Our staff will explain the mediation process in detail to prepare you for the session. You may be referred to an external organisation for some legal advice prior to the mediation if necessary. Sometimes parties choose to formalise agreements through their legal representatives after the mediation session. We can direct you to one of our associates if you require a lawyer.