Mediation is an ADR process where an independent third party, the mediator, assists the people in dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement.
However, the mediator does not give their advice or opinion about the issues or have any role in deciding the outcome of the mediation.
About the mediation process
A mediation session is usually a structured, face-to-face meeting with all the people in dispute and one or more mediators.
At mediation, you will generally be asked to talk directly to the others involved in the dispute and may also have separate sessions with the mediator. There will usually be breaks for each person to reflect on the discussion and get advice or support if they need it.
Mediation may be voluntary, court ordered or required as part of a contract. It may also be part of a court or government agency process.
Role of the mediator
The mediator will:
- explain the mediation process and set the guidelines for how it will work
- ensure each person has a chance to talk, be heard and respond to the issues
- keep everyone focused on communicating and resolving the dispute
- ask questions to help people identify and communicate about what their goals and desires are and why they feel that way
- help clarify the issues and suggest ways of discussing the dispute
- help the people in dispute develop options and consider whether possible solutions are realistic
- try to assist the parties reach an agreement where appropriate and make sure everyone understands any agreement reached
- refer you to other helpful services if required.
The mediator will not:
- take sides, make decisions or suggest solutions - this is for you and the other participants to do
- tell you what you should agree to do - you decide what to do, including whether to stay at mediation
- decide who is right or wrong - the focus is on finding a solution that everyone can live with, not making a judgment
- give legal, financial or other expert advice - you can get advice before, during and after mediation if you choose
- provide counselling - you can get counselling or other support before, during and after mediation if you choose.
While most mediation sessions are held face-to-face, in some circumstances sessions can be held over the telephone. Another option is shuttle mediation, where the people in dispute sit in separate rooms and the mediator speaks to them separately and acts as a messenger between them.
When is mediation suitable?
Mediation may be suitable if you:
- feel comfortable and safe having a conversation with the others involved
- want a third person to assist the discussion
- want to make the decision yourselves
- want to maintain the best possible ongoing relationship with the other participants
- want to control the outcome, rather than ask someone else to decide the outcome
- want to keep discussions confidential
- want to find innovative solutions to a problem.
Mediation may be unsuitable if:
- you do not feel safe when communicating with the other participants
- there is a power imbalance that means one or more of the participants is not able to participate equally in the process and negotiate on their own behalf effectively.
Mediators can help you decide whether mediation is suitable in your situation. They can also bring the appropriate people together, provide a supportive environment and help organise a time and venue. Mediators may also discontinue mediation if they feel it is no longer appropriate to mediate.
Lawyers, experts and support people
Before mediation, you can get expert advice to prepare for the session, for example by getting legal advice on your rights and responsibilities and what alternatives are available if you do not negotiate an agreement.
If all the participants agree, mediation may also involve support people, your lawyer or other professionals.
The role of lawyers in mediation will usually depend on the type of case. For example, in disputes between individuals such as neighbours, there will be many types of issues to resolve that are not just about legal rights. In these type of cases, mediation generally works better when it is an informal process without lawyers attending or, if they do attend, just listening but not taking an active role.
For large or complicated disputes that involve mainly legal issues, it is more common to have lawyers present and involved in the mediation process, although the focus remains on the people in dispute communicating about the issues and working towards a resolution.
How do I find a mediator?
There are a number of options for finding a mediator suitable for your dispute. See Service providers.