What happens at mediation?

When you and the other party agree to attend mediation there are a number of processes which remain the same regardless of which mediator or family dispute resolution practitioner you engage to assist you with your process.

Once your mediation has been booked, in the lead up to your mediation, the mediator may send a request for information about the mediation which is to occur.  This is so the mediator has some information about the dispute, whether it is a parenting dispute or a property dispute, or both.   If you are already in Court proceedings, this may include sending the mediator a copy of the Court documents which have been filed in your matter including any Orders which have been made.  If you are not in Court proceedings and have a solicitor, your solicitor might prepare a mediation statement or summary setting out the issues. 

In the days before the mediation, the mediator is likely to be in touch with you for what is known as an intake appointment.  This is where the mediator or family dispute resolution practitioner will go through the mediation process with you and let you know certain important aspects about the mediation that they are required to tell you.  As part of this intake appointment, you can let the mediator know what you are hoping to achieve as part of the mediation process and any concerns you have about the other party. 

There are certain important things that the mediator must let you know, particularly if they are also a family dispute resolution practitioner and your matter involves the arrangements for children.  The mediator will let you know that the process is confidential and cannot be used in Court later.  For example this means that you cannot later say in Court proceedings that the other party said certain things during the mediation.  In certain circumstances you are not even allowed to disclose the agreement which has been reached.  The mediator will take notes for the mediation but it is likely that the file will be destroyed following the mediation and you will not be allowed to call on the mediator to produce any notes because of the confidential nature. 

There are limited circumstances where the confidentiality of the mediation can be waived.  These involve circumstances where a party, during the mediation, makes threats against a person or property and the mediator genuinely believes that the party will carry out those threats.

The mediator will set the ground rules for the mediation.  If you are participating in this process in person it is important that you listen to the rules set by the mediator which will include things like not talking over the other party, listening and being respectful of the other party at all times.  The mediator will make sure that you have the opportunity to have a say and therefore you should take notes while the other party is speaking if there are things that you do not agree about.  More and more, mediations are occurring either via electronic means in Zoom, MS Teams, by telephone or in a shuttle conference where parties are in separate rooms so the requirement to be in the same room with you former partner to talk about your property or parenting matter is less likely these days.

Sometimes however the mediator prefers to get the parties together in an initial joint session so that both parties can hear the same information being said about the mediation process.  This is helpful and if you have the ability to be in the same room for this initial joint session it is certainly recommended because then you can get on with the mediation more efficiently knowing that both of you have received the same information.

You will then commence your mediation which will involve the mediator meeting with one of the parties to talk about where they are up to and what their potential opening offer will be.  The mediation will then proceed by way of exchanging offers with the mediator going back and forward between the parties until an agreement is reached.  If an agreement is reached, depending on the services offered by the mediator and depending on whether you have a lawyer with you or not, the agreement will be documented and you and the other party will sign that agreement.  You can read some more information about how to document the agreement and the types of documents available elsewhere within our library of articles. 

It is important that you be prepared for the process and the more you know about the process prior the mediation, the more efficient your mediation will be and the more empowered you will feel when making decisions in your matter.