Making the Most of Mediation
With a settlement success rate of 85%, it makes sense that the courts order mediation as a compulsory step in litigation. Mediation gives the parties the best chance to negotiate a resolution prior to either issuing proceedings or going to trial when proceedings have already been instigated. Settling at mediation will avoid drawn out, costly and emotional trials.
What is Mediation?
Mediation is an alternative dispute resolution method. It is conducted by a neutral third party (usually a mediator or court registrar) who hears arguments from both sides. They can ask questions and clarify points in dispute. The mediator will generally then separate the parties into individual rooms and encourage them to make settlement offers to resolve the dispute.
The mediator’s role is to facilitate negotiations and settlement discussions. They do not provide legal advice or make a determination as to who is right or wrong.
How to get to Mediation?
You cannot force mediation! The only way to get the other side to attend a mediation is:
- By formal agreement: if your dispute relates to a written contract, look in the contract for a dispute resolution clause. This clause will usually require the parties to attend mediation prior to issuing legal proceedings;
- By informal agreement: you can attend mediation if the other side agrees in writing or during a discussion;
- If required by an ombudsman or other authority that governs the dispute;
- If required by a court or tribunal.
Although this means that the parties will have to attend the mediation, it does not guarantee a meaningful participation or discussion. For this reason, do not pressure the other side into attending mediation.
The greatest advantage you can have in a mediation is being well prepared. Being prepared is more than just knowing your own arguments, it means foreshadowing the arguments or position of the other side. You can understand their position from reviewing the evidence, correspondence and being aware of the weaknesses in your own case.
You should also comply with any preparation requirements set by the mediator. This often includes:
- Providing a brief to the mediator. A brief will include a summary of the issues in dispute and the key documents;
- Providing a position paper to the other side and the mediator. The position paper will go through the evidence you rely on, a summary of your position and what you seek from the mediation;
- Reviewing the other side’s position paper and assessing the evidence relied upon. Generally, the strongest evidence will be in written form. The strength of oral evidence or discussions will depend on that person’s believability.
You should also know what your best and worst outcomes will be if the dispute doesn’t settle at mediation.
Be Aware of Your Negotiation Style
There are many negotiation styles and theories. At a very basic level, our advice is not to negotiate the way you like! You need to negotiate in a way that appeals to the other side, which may be a very different style than what appeals to you. Generally, the style the other side likes will be the style they are using against you. So, as a starting point you can simply copy their style, body language and tone.
For a more in depth discussion on mediation and negotiation, listen to our director, Alex Martin’s episode on Negotiation in Real Life here: https://open.spotify.com/episode/1xvUzAb4LqZgE0lIOYkIyb?si=Xsu370X6RTO6wV5P6YOxbA&utm_source=copy-link&nd=1.
Should you wish to discuss a specific issue relating to a dispute, please contact one of our experienced dispute resolution lawyers at Taurus Legal Management on (03) 9481 2000 or at email@example.com.