Mediation Services

Mediation is a decision making process where an independent Mediator helps parties to discuss and resolve their dispute, without the Mediator having any decision making or advisory powers. Auckland mediator, John Isaac, explains the mediation process below…

THE MEDIATION PROCESS & PARTICIPANTS ROLES

THE MEDIATOR’S ROLE

The mediator’s role is to:

  • establish a constructive atmosphere and facilitate communication between the parties about their respective views
  • assist the parties to isolate and discuss the key issues and to identify and focus on their underlying needs in relation to them
  • assist the parties to develop a range of possible options for resolution of the issues
  • assist the parties to reach an agreement by looking at the risks associated with not resolving the dispute and the advantages of settlement now.

The agreements reached at mediation will usually be formalised in a binding written agreement, signed by all parties. Where mediation is simply a scoping exercise, no formal signed agreement will be expected from that type of mediation.

However, even if a binding agreement does not result from mediation, reconciliation or improved understandings are also positive successful outcomes of mediation.

There are very few disputes that cannot be mediated successfully, provided all parties are genuinely prepared to in good faith ,work together empathetically, to really understand each other’s perspectives & and to resolve their differences by agreement.

PARTY ROLES

To discuss in good faith all issues in dispute, to carefully listen to & empathetically consider the other parties perspectives on each issue in dispute & the options proposed to resolve the issues in dispute.

LEGAL ADVISERS ROLES

  • To advise and assist their client in the course of the mediation;
  • To discuss with each other, and with their respective clients, legal, evidentiary or practical matters which might assist to resolve the dispute.
  • To generate possible options for the resolution of the dispute.
  • To evaluate any settlement options generated against what will happen if no agreement is reached (known as  best alternatives to a negotiated agreement  or BATNA) e.g. most likely outcome in court, damage to reputation/relationship/business opportunities, time, cost and other factors associated with failing to reach agreement.
  • To prepare the terms of settlement or heads of agreement recording any agreement reached.

STEPS IN THE MEDIATION PROCESS

A.        PRE MEDIATION

The pre-mediation steps are usually as follows:

1.           AGREEMENT TO MEDIATE & APPOINTMENT OF MEDIATOR

As Mediation is a voluntary process, agreement from all parties is required before mediation can begin.  Any party may end the process at any time.

The parties agree to appoint an impartial mediator which is confirmed in a written agreement, signed by the parties and the mediator.

2.           PRELIMINARY CONFERENCE

A preliminary conference is an opportunity for the Mediator to clarify any issues about the process, make arrangements for the mediation and establish that all parties are ready to mediate.

The preliminary conference provides the opportunity:

  • for parties (and/or their lawyers) to indicate their expectations of the process and for the Mediator to explain their approach to mediation.
  • to ensure that mediation is the appropriate dispute resolution process and that the Mediator does not have a conflict of interest.
  • for the parties to agree whether further steps need to be taken in advance of the mediation, for example, the exchange of documents or any further information or whether any expert reports are required.
  • for the parties to agree on the information to be provided to the Mediator in advance of the mediation.  Parties may wish to provide the Mediator with a brief statement of the issues and possible options for settlement on a confidential basis in advance of the mediation.  This gives the Mediator the background to the dispute and also helps the parties to focus on the main issues and possible settlement options prior to the mediation, thus reducing time spent in the mediation itself.
  • Alternatively, parties may wish to agree a statement of facts or to exchange issues statements in advance of the mediation. It is very helpful for mediators to have this as it is effectively a “heads up” ahead of mediation.
  • for the parties to agree who will attend the mediation, including support people if needed.
  • to set a convenient date, time and venue for the mediation.

1. MEDIATION MEETING

Attendance

A person from each party with authority to settle the dispute needs to be present at the mediation.

The parties may agree that other people be present at the mediation, for example legal advisers, expert advisers and support persons-some of whom may be required to sign a confidentiality agreement.

Mediators Opening Statement

Following introductions, the Mediator will briefly explain the mediation process and the Mediators role and answer any questions from the parties.

Party Statements

The Mediator then asks each party in turn to briefly outline the issues they wish to raise in the mediation. This is an important opportunity for lawyers and parties to ensure that their key concerns are highlighted & set the tone of the mediation.

Key Issues

Following the parties’ statements, the key issues in dispute are identified and form the basis for an agenda for discussion.

The Mediator, whilst all parties are together in the first joint sessions where the key issues are discussed, will aim to promote consensus around agreed facts and an understanding of the different perspectives each party brings to the dispute.

Private Meetings

Parties may need to hold their own private meetings during the mediation. The Mediator may also need to meet on a confidential basis with one party at a time.  The aim of private meetings is to allow parties to raise issues with the Mediator in private and to identify settlement options and parameters.   Unless specifically authorised to do so, the Mediator will not disclose anything said in a private meeting, to another party.

Recording Agreement

Once agreement is reached, the parties or their legal advisers will record it in writing and the parties will sign the written agreement.  Once signed, the agreement is binding.  If agreement is not reached, the parties are free to try and resolve their dispute in other ways, such as court action.  In some cases, agreement may be reached later, after the parties have had time for further reflection, in negotiations between the parties or their lawyers, or in another mediation meeting.
I mediate a wide variety of disputes including:

  • Business: Employment, shareholder, supplier, insurance, lease, rent reviews, business and property sale transactions
  • Contractual: Relating to the supply of any goods and services
  • Matrimonial/Relationship: Division of assets on separation
  • Civil: Between private individuals and also private individuals and other parties (e.g. ACC claims)
  • Estate: Distribution of estate assets

By using my Auckland mediation services, clients will resolve their disputes quickly, confidentially and most importantly minimise the total costs (including legal and other professional fees) of resolving their disputes. What’s more they will remove stress (a major cause of illness) from their lives.

Please CLICK HERE if you would like a NO-COST / NO-OBLIGATION conversation about how I can assist you resolve any dispute >