Mediation process

Mediation is a safe and informal environment for you to talk to each other and sort out your problems.

Even if it is not possible to reach an agreement on all the issues, mediation can help everyone involved understand the issues and see things from the other person’s point of view. This can improve relationships and may lead to some agreement at a later time.

General steps in the mediation process

1. Everyone introduces themselves and mediators explain the process and ‘ground rules’ for the mediation.

2. Everyone takes turns expressing their point of view and what has brought them to the mediation. Each person is listened to without interruption.

3. Mediators help the people involved in the dispute explore the issues on the agenda by encouraging and guiding the discussion.

4. Mediators see each person in a confidential private session, while the other person or people think about their options.

5. Everyone is then brought back together, and the mediators help them to negotiate future arrangements.

If everyone agrees on some or all of the issues, the mediators can help write a settlement agreement and give a copy to each party to sign, as a record of what was decided.

Settlement agreements may be made legally binding if everyone agrees.

7. If no agreement is reached, but everyone agrees further mediation may help, another session can be arranged.

A mediation session usually takes between two and four hours. It may take longer if there are a lot of people or complex issues involved. Please make sure you allow enough time when attending mediation. You can ask for a break at any time during the session.

The role of mediators

Mediators are professionals trained to help people resolve their disputes. Unlike a judge in court, mediators cannot make a decision about the outcome of the dispute, or who is right or wrong.

CBOS mediations are facilitated by mediators appointed to a panel to hear the particular dispute. They are chosen by the Director and have the qualifications or experience determined by the Director.

Mediators help people identify issues, develop options, consider alternatives and ideally reach their own solution.

The mediators will:

Guide you and the other party through discussions about your concerns and issues to see if there are any solutions that may be acceptable to both of you.
Be impartial and not take sides.
Create an environment where everyone has a chance to be heard equally, ensuring that discussions do not get out of control.
Help break down the problem into manageable issues.
Make sure that all relevant issues are covered.
Help you and the other party to think of options that may help to resolve the dispute.
Help you write down the details of any agreement reached.

The mediators do not:

Give legal advice.
Take sides.
Decide who is right or wrong.
Make a decision for you.
Make suggestions about what should happen after the mediation.
Force you to reach an agreement.

You control the agenda; the mediators control the process. It's helpful to remember the following points.

You can stop the mediation at any time, as your participation is voluntary.
You can talk about whatever issues or concerns you have with the other party. It doesn't matter whether or not it was you who asked for mediation in the first place. You can raise any issues you want to.
If the other person raises an issue that you do not want to discuss, you can say no. However, the mediators may encourage you to discuss it so you can resolve all the problems between you. The mediator's task is to guide and encourage the flow of communication and help everyone to understand the dispute and each other's point of view fully.

Preparing for mediation

Think about the issues

Prepare to discuss the issues you want to raise and the issues you think others might raise. These may involve difficult conversations, so think about how you might express yourself in advance. Be ready to share your ideas and give some thought to various options that may bring about a solution. Brainstorming beforehand with a friend or relative might help.

What are your key concerns?

Think about how you feel about the issues in dispute. Write a list of your key concerns. Remember: at the mediation session you can discuss whatever issues you like and will have a chance to respond to any issues the other person (or people) involved in the dispute raise. Everyone involved in the dispute sets the agenda, not the mediators or Director.

Collect relevant information

There may be receipts, bills, reports, plans, diagrams or documents relating to the dispute. You may wish to bring these along to help you and the other person or people to clarify the issues and to be specific about what you want and why you want it.

Think about agreements you might consider

Think about any agreement you might be willing to make. What are the minimum conditions you will accept in order to come to an agreement? Take time to consider what will happen if the mediation is unsuccessful. Think about what you are willing to live with. Come prepared with several options in mind and a willingness to be flexible when considering options put forward by others.

What about the other person?

Consider the other person's interests and needs and think about what minimum agreement they may be seeking. Look for things you might have in common. Think about things that you would be willing to compromise on to help achieve agreement.

Think about your feelings

Take into account the fact that you or other people involved in the dispute could be feeling anxious, worried, angry or otherwise emotional and that this may affect how you or they behave. How can you help the discussion stay calm and focussed?

Do I need a lawyer?

Lawyers are not usually required at mediation because it is not a legal process. It is an opportunity for you to talk directly to the other person or people in your dispute in order to resolve the problem in a safe and informal environment.

The mediator will help you to understand each other's point of view and to make your own decisions. If you want to get legal advice or information, you can get it before the mediation, or ask for a break during the mediation session to talk to your lawyer or a legal information service.

In some circumstances, you can request that your lawyer attend mediation with you. If you request this, the Director will consider:

Why you need a lawyer to attend;
What role your lawyer would play;
Whether the other person or people attending mediation will wish to bring a lawyer;
Whether the other person or people agree to your lawyer attending.

After considering all these factors, a decision will be made by the Director about whether a lawyer may attend.

Support people

In some circumstances, a support person may attend with one or more of the people involved in the dispute. Support people do not generally participate in the session. Any arrangements related to support people must be made before the mediation and the other people attending will need to agree whether the support person can attend.

Do I need to bring witnesses?

Witnesses are not required at a mediation. Mediation is about coming to an agreement, not about proving what someone said or did.

Stopping mediation before the end of a session

Sometimes a mediation session will be stopped before it reaches the final stage. Any person participating in the mediation, or a mediator, may end it.

At any time during the mediation, you can tell the mediator if you need to take a break.

In some circumstances, people wish to stop the mediation before the end. Mediation is a voluntary process, and you can end the mediation session at any time if you feel this is necessary.

Mediators can also end the session at any time if they decide that:

Despite the mediator’s best efforts, one or more of the participants refuses to follow the mediation process and the 'ground rules' agreed to at the beginning of the session.
One or more of the participants is not negotiating in good faith (they may have no intention of agreeing or have ulterior motives for attending).
One person is much stronger in the negotiations than the other person or people and this means it is not fair to continue (for example, someone is being bullied).
For some other reason it is not appropriate for mediation to continue - you may still request a further mediation session in the future, but noting the 20 day period in which a settlement must be reached before the mediation must then cease.

Confidentiality

Mediations are generally confidential. Evidence of anything said, or of any admission made, during mediation–

(a) is not admissible in any proceedings before any court, tribunal or body, including any later proceedings that may be considered by the TASCAT; and

(b) may not be used by the Director, for the purposes of the Occupational Licensing Act 2005 (such as investigating potential disciplinary matters regarding licensees).

The Director cannot show this agreement to anyone else without permission from everyone involved. If you want the agreement to be seen by others, everyone must agree, and this must be put in writing in the agreement document.
However, the TASCAT can see the agreed Terms of Mediated Settlement if a party to that agreement is seeking to have its terms enforced as a settled legal document.