Mediation is a form of dispute resolution that, if conducted appropriately, can effectively resolve conflicts without having to go to Court.
There is a growing trend to explore alternative ways to resolve disputes. This includes mediation. Courts are increasingly referring matters to mediation in an attempt to increase the resolution of disputes without the need for trial. Indeed, trials are notoriously long, unpredictable, emotionally exhausting and expensive. On the other hand, mediation provides disputing parties with an opportunity to take control of the outcome in a way that focuses on what is practical, avoiding the need for rigid legal positioning.
Mediation may not be appropriate to every situation. For example, mediation requires willing participants who are committed to resolving the dispute. In addition, where there is a perception of a power imbalance, that must be addressed before participants commit to mediation. However, where mediation is appropriate, this brief outline explores four tips that will help you get the most out of mediation.
Mediation is only effective if you give it the time it deserves, not only on the day of any mediation meeting, but also beforehand.
Before mediation, ask yourself, ‘What do I want to get out of mediation?’ and be prepared to speak to that during the mediation. A good mediator will explore these issues with you well before any mediation meeting. A good mediator will also allow the participants to set the agenda based on the specific needs of the participants.
If you’re attending a mediation in a representative capacity, for example on behalf of an organisation or a community, confirm your objectives and parameters before the mediation. You will get the most out of mediation when you have the authority to settle, or, at least know what is likely to be supported by the ultimate decision makers.
Listening is paramount to effective mediation. Proper listening is more than just hearing the words that someone is speaking. Listen to the tone being used and the emotions that are being expressed. This will help you to better understand the positions that are being put forward. Having said this, don’t assume you understand the position; often problems are a lot more complex than what may be detailed in a mediation meeting. As a result, keep an open mind. This is sometimes referred to as ‘active listening’.
Active listening will also reassure the other participants that they are being heard, and may help to restore trust between the participants. A good mediator will make sure people are understood and allow participants to speak to each other rather than to or through the mediator. Remember, it is not the role of the mediator to be a spokesperson for the participants.
We recommend that all participants practice active listening before attending mediation. It is harder than what it sounds, but with practice (say with your family at home, or, with colleagues during a work meeting) it will put you in a good position during any mediation.
3. Explain your challenges
In so far as you are willing and able, be open during discussions. Use your own words to explain the challenges you are facing. Our experience shows that being transparent about what impacts you builds an understanding between participants that can be rarely achieved in any other setting. Indeed, sometimes mediation is conducted after ‘letter-warfare’ driven by legal positioning. Being open in explaining your challenges restores the human reality on what may have been a messy and hard-fought legal battle beforehand.
A good mediator will ask strategic questions of all participants throughout the mediation to help participants explain how they are feeling. A good mediator will probably also, at various times, invite participants to separate sessions where they can privately discuss concerns with only the mediator present. The purpose of those private sessions is not to maintain veils of secrecy. Rather, the purpose of private sessions is to provide a safe environment to help break-down barriers impacting frank communication between the participants.
Remember, mediation is confidential and without prejudice. This means that neither the participants nor the mediator can talk about what is discussed outside of mediation unless it is agreed by everyone. In addition, it means that anything that is said in mediation cannot be used against you at a later time.
4. Trust the process
If you do not trust the process and are not wanting the problem to be resolved at all, or, are thinking that you will be able to achieve some other ulterior purpose, do not proceed with mediation. Your time is valuable and mediation won’t work, so don’t waste your time or that of the mediator.
On the other hand, if you are open to trusting the process and willing to prepare, listen and explain your challenges, mediation may be right for you. A good mediator will explain their role, the process and reassure the participants on the benefits of mediation. A good mediator will also help you to identify common ground and give you opportunities to restore damaged relationships, but equally will not shy away from getting the real issues out on the table for discussion.
If, during mediation, something is bothering you or you genuinely do not believe what is being said, respectfully call it out and get your views on the table. You should leave a mediation knowing that everything you wanted to say was said during the mediation. A good mediator will give you opportunities to do so without you having to interrupt the other party. A good mediator will also see these ‘flash points’ as opportunities rather than unhelpful impasses.
Mediation is more than just a fancy catchword. While there are no guarantees, mediation has a solid track-record as an effective way to resolve disputes. Indeed, mediation is now a recognised profession in its own right because of its success. Without doubt, lawyers are not necessarily good mediators – there are a range of other professional backgrounds that may be relevant and helpful to your mediation. Consequently, be sure to choose a mediator that all participants have faith in.
For more information about how to prepare for mediation, please contact us.
Michael Pagsanjan is a nationally accredited mediator and listed on the Federal Court List of Approved External Mediators for native title matters. Michael has several years of experience with mediation around Australia.