Mediation is a way to resolve disputes, where the neutral mediator helps the parties come to an agreement that the parties are comfortable with. As the mediator, I am in charge of the process. That means that I am in charge of the organization of the mediation sessions, setting an agenda, working out the order of the issues to be discussed, and directing the conversation.
It is interest-based. That means that I find out what are the goals, concerns, and needs of the parties and direct the conversation towards the parties aiming the resolution at meeting their goals. I ask the parties to talk about what their priorities are; what are the most important things to them. An example might be:
“I want our children to be well looked after.”
“I want the two of us to be able to cooperate so that we can continue to be good parents to our children”
“I want a home for the children and me.”
Many of the goals and priorities are the same for each of the participants in the mediation. With a basis of common interests and goals, it is hoped that a resolution can be reached to the various issues that need to be resolved.
It is important that the parties observe certain guidelines for behaviour during the mediation sessions such as refraining from unproductive venting about the past and that they should instead direct their efforts to making the fairest and most constructive agreement possible. The focus is on respectful listening and to encourage people to talk about their interests rather than fixed positions. An example of a fixed position is: “I must have our white Range Rover.” What the person may really be saying may be, “I need a reliable vehicle to drive the children to school; to their soccer practices; and their music lessons, particularly as we live out in the country 15 km from the nearest town.”
Full disclosure of financial assets and liabilities is essential. Negotiation towards a final settlement cannot satisfactorily take place unless the parties know what they are negotiating about.
The process is confidential so that the parties may talk openly.
I always say to the parties that they are the best people to make decisions about their future and that of their children. They know the most about themselves and their children, whereas a judge hears only what the parties or the lawyers tell the judge and bases his or her decision on only a portion of that information. Also, the parties can be more creative in the decisions they make. Because it is the parties themselves, who are making the decisions, they have a deeper stake in the resolution than they do in a court order.
Once an agreement is reached, a written agreement is drawn up. This should be signed by both parties in front of their own independent lawyer.
Before the first mediation session, I always have a pre-mediation meeting with each of the parties to explain the mediation process; to provide some education about some constructive communication; to find out the important issues for each of the parties and to talk about how the parties have attempted to resolve their disputes in the past.
I mediate with the parties alone and also with the parties accompanied by their lawyers.
If I mediate with the parties alone, I will always advise the parties to the forthcoming mediation to obtain some legal advice and information before attending the first mediation session and, if need be, between the mediation sessions.
Not every situation is suitable for mediation, nor is every personality. It is my job as a mediator to assess at the pre-mediation meeting whether mediation is appropriate and during the mediation sessions themselves, whether the mediation should continue or cease. It is also my job as a mediator to manage any power imbalances during the mediation. This may mean giving equal time to each of the participants; to encourage a nonverbal person to put forward their point of view; and to make it clear that I am not the ally of either of the participants.
If mediation is appropriate, remember that you and your former spouse or partner are the best people to make decisions about your disputes.
I find it tremendously rewarding to conduct a mediation and see an agreement reached by the parties with my help.