What do I need to prepare before mediation?
- Familiarize yourself with the facts of the case
- Consider in advance various acceptable resolution options
- Seek prior legal advice if necessary
Most importantly, arrange to have individuals whose decisions are necessary for resolution present for the entire mediation.
Do I have to go to mediation?
No - the mediation process is entirely voluntary, however, if the dispute is or will be subject to Court proceedings, the Court will take into account all relevant circumstances, including whether a party has unreasonably refused to take part in mediation, in exercising its discretion to award costs. You may face an enhanced costs order if the Court finds that you refused an offer to mediate unreasonably.
What if the parties don't settle?
If the parties could not reach any agreement, they may consider bringing the issue/case to Court and going through the litigation process.
Both parties must appreciate that all discussions during a mediation session is on a privileged and without prejudice basis. Which means that nothing discussed can be used as evidence in future legal proceedings. (See Mediation Confidentiality CA Codes (evidence: 1115-1128)
The parties will not be at a disadvantage after trying mediation which turns out to be unsuccessful. They may find out that the issues are clearer as a result.
How can the parties be sure that mediation will produce a fair result?
The work of a mediator is not to make a decision for the parties. The mediator helps the parties think beyond the present situation for possible solutions to the dispute, thus enabling the parties to find the path to dispute resolution that suits them best. The parties will work to come up with a solution to their own dispute. Unless they totally agree, there will be no final resolution and nobody can force them to sign any agreement.
In a mediation session, the mediator will help the parties to:
- Discuss and decide what matters are in dispute
- Explore each party's real needs and interests
- Expand settlement options and assess the most suitable solution
Draw up the settlement agreement in detail, setting out how the parties have agreed to resolve each matter in dispute.