Mediation is an increasingly popular method for resolving disputes, offering a cost-effective and less adversarial alternative to litigation. Whether you are engaged in family, workplace, commercial, community, or personal injury disputes, understanding how to prepare for mediation and how to prepare your client can significantly increase your chances of achieving a positive resolution. In this article, we will explore the essential steps to take when preparing for a mediation.

Understand the Mediation Process

Before diving into preparation, it’s important to understand what mediation is and how it works in context.

Mediation is a voluntary, confidential process in which a neutral third party (the mediator) facilitates communication between disputing parties to help them reach a mutually agreeable solution.

While the mediator does not make decisions or impose outcomes, they help guide the conversation, encourage constructive dialogue, and assist parties in exploring potential solutions. Mediation is often less formal than court proceedings, and participants generally maintain control over the outcome.

Choose the Right Mediator

Choosing the right mediator is essential for a successful mediation. The mediator should have NMAS national accreditation, relevant expertise (e.g., planning, commercial, family law, workplace law, personal injuries), and be impartial and experienced in negotiations.  In many cases, the mediator is chosen by mutual agreement between the parties from a panel of three mediators.

Understand the Issues and Your Position

Successful mediation often starts with a clear understanding of the issues at hand.  If the matter is already litigated, then the pleadings will act as a means of narrowing issues in dispute. 

Prior to the mediation, take time to reflect on the key points of disagreement and your client’s desired outcome. Discuss priorities, the potential compromises your client is willing to make, and any underlying interests that may inform your stance. Remember, the mediation is a commercial environment which is designed to assist parties to reach resolution, if possible, but agreements cannot be imposed upon the parties.

Some practical steps to help clarify your position include:

• List the issues: Write down the specific points of dispute and be clear about which ones are negotiable, and which are non-negotiable.
• Prioritise your interests: Understand what you really need to achieve in the mediation versus what would simply be “nice to have.”
• Prepare supporting evidence: Organise any documentation or records that will back up your position, such as emails, contracts, financial records, or legal documents.

Consider Possible Solutions

While you (and your client) may have a preferred outcome in mind, it’s also important to consider potential alternatives that could resolve the dispute. Mediation is about finding solutions that are acceptable to both parties, so the more flexible you are, the better your chances of reaching an agreement.

Think creatively about possible compromises. For example:

• Can the timing of an agreement be adjusted?
• Are there creative ways to divide resources or responsibilities that might satisfy both parties?
• Is there room for non-financial resolutions, such as behavioural changes, public apologies, or changes to an ongoing relationship?

Having several potential solutions in mind demonstrates a willingness to negotiate, which is essential for a successful mediation.

Review Legal Rights and Obligations

While mediation is a more informal process, it remains essential for clients to understand their legal rights and obligations. Legal representation before entering mediation provides confidence and ensures that any agreement made is legally sound. Preparing pre-mediation advice for the client can outline key issues and likely outcomes, assisting them in preparing for the mediation and providing informed instructions without the immediate pressure of the mediation process.

Prepare your Client Emotionally and Mentally

Mediation can be an emotional process, especially in cases involving personal injuries, estates, personal or family disputes. Being emotionally prepared will help your client stay calm, focused, and engaged throughout the process.

Some tips for your client’s emotional preparation:

• Be patient: Mediation can take time, and discussions may get tense. Being prepared for a lengthy process and staying calm during difficult moments can lead to better outcomes.
• Control your emotions: Try not to let strong emotions, such as anger or frustration, dictate your behaviour during the session. A mediator is there to help facilitate communication, not to take sides.
• Listen actively: Instead of focusing on preparing your next argument, listen carefully to the other party’s concerns. This not only helps create a more cooperative atmosphere but can also open the door to creative solutions.
• Maintain a constructive attitude: Try to focus on solutions rather than problems. A positive attitude and openness to compromise can make a significant difference in the outcome.

Know What to Expect on the Day of Mediation

On the day of the mediation, it’s helpful to know what to expect. Here’s a general overview of what may happen:

• Opening statement: The mediator will introduce themselves and explain the process. Each party will have an opportunity to make an opening statement, which should focus on outlining the issues at hand without attacking the other party.
• Private sessions: In some mediations, parties will meet separately with the mediator (called a “caucus”) to discuss their positions in private. This allows the mediator to understand each party’s perspective and move forward towards a resolution.
• Negotiation: After gathering information, the mediator will work with both parties to facilitate negotiation and explore possible solutions. The mediator may move between parties, helping them to communicate and refine proposals.
• Resolution: If the parties reach an agreement, the mediator may help formalise it in writing. Depending on the nature of the dispute, the agreement may be legally binding.

If an agreement is reached, the legal representatives should document clearly what is agreed and, if applicable, the agreement should be signed by both parties.

If no agreement is reached, the mediator will typically provide a summary of the discussions and may suggest further steps, such as continuing the mediation process, seeking legal action, or pursuing other dispute resolution methods.

Conclusion

Mediation can be a highly effective method for resolving disputes.  By preparing thoughtfully and thoroughly, you can increase the chances of a positive outcome that is mutually beneficial. The key to success lies in understanding the process, being well-prepared, and approaching the negotiation with an open mind and a focus on resolution.

Following these steps will help you and your client enter mediation with confidence and improve the chances of finding a fair and lasting solution.