Good preparation is the key to getting the most from mediation. To prepare for mediation you should:
Familiarise yourself with the mediation process
You should find out everything you can about what will happen at mediation. Mediation is much more informal than other dispute resolution alternatives and understanding the process will make you feel more comfortable and relaxed. Mediation may take all day so wear comfortable clothing and consider what refreshments are available at or nearby the mediation venue. If necessary consider bringing your own food, drink and snacks.
Details of our facilitative mediation process can be found here.
Think about the issues involved
Consider the issues you want to talk about at mediation and write them down. Think about each of the issues and why they are important to you. Record the issues that are most important to you and record separately those that are less important.
Identify what might be the issues for the other party
Mediation is about resolving disputes with other parties. They too have issues that are important to them so it is worthwhile considering what those issues may be. Negotiations will be enhanced if you can anticipate what the other party may bring up.
Decide what you want
Consider what you would like to achieve from the mediation. What are the needs and interests that you need met? They may include such things as:
- a financial settlement;
- an apology;
- maintain an ongoing relationship with the other party;
- finalise the dispute so you can move on;
Consider what the other party might want
It is worthwhile considering what may be the needs and interests of the other party. It may be helpful in negotiations if you can anticipate what are the other parties needs and interests. How might these needs and interests be met? Is there anything that you could provide or give up that might meet those needs and settle the matter more quickly and easily?
Understand your legal rights
If legal rights and responsibilities are involved consider obtaining legal advice before mediation. This may be of help in making a good decision about any proposed settlement agreement.
Among other things a lawyer can provide you with information about:
- what the law is in relation to the matter in dispute;
- how the law applies to the issues in dispute;
- how a judge might decide the matter if it went to court;
- what is the court process in such disputes;
- the cost of going to court in both time and money.
Consider the possible options for ending the dispute
After considering the issues important to you and the other party and what you and the other party want to achieve in the mediation it would be helpful if you would consider the options for dealing with each one of those. In relation to each option think about the following:
- Be realistic. Is what you want possible and will the other side agree?
- What does the other side want and is that realistic? Are you able and willing to provide the remedy they are looking for?
- Can and would a court provide the remedy you are looking for?
Mediation can, and does, include discussion of all of the issues in dispute, not just legal rights. Therefore, in mediation an agreement can be made about all sorts of matters and provide for options that are not available to the court.
Understand your emotions
The dispute may inspire all sorts of emotions from you. Think about them and how they may affect you in the mediation. Plan how you will deal with them.
If you do become upset during the mediation you may:
- ask the mediator for a break or for a private session;
- explain what you are feeling to the mediator and the other side;
- ask to have a support person at the mediation.
Plan how to communicate
Speaking angrily or criticising the other party may make it much harder to reach agreement. Therefore, it is wise to remain calm. Consider how you might react to any of the issues the other party may raise and plan your reaction accordingly. It is part of the mediator’s duties to promote calm and effective communication between the parties.
Consider if you want to take someone with you
It is possible to bring someone with you to your mediation session. They could be:
- a support person who does not talk for you but provides emotional, physical or other forms of support;
- someone who speaks on your behalf;
- a lawyer who may or may not speak for you but also provide you with legal advice. A lawyer also helps with drafting a settlement agreement; and/or
- an accountant or financial planner to help you understand and make good decisions about financial matters.
If you want to bring along a support person please discuss it with your mediator. The mediator should inform the other party of your desire to bring along a support person and also provide them with an opportunity to do so. The mediator will also ensure that the chosen venue has enough room for the support people.
Do you need and interpreter?
If you need an interpreter you may bring one along. Please advise your mediator.
Gather information and documents
You should gather all of the documents that are important to your case and the information that supports your case. The documents may be helpful in supporting your position and help you to understand the strengths and weaknesses of your case.
Think carefully before showing documents and other evidence to the other party in the mediation. It may weaken your legal case if the evidence you show them can be obtained in an alternative way. Seek legal advice if you are concerned about revealing evidence.
A handy worksheet to help you with your preparation can be found here.