What happens at mediation?

What should I expect?

There is no set structure for mediation and when you go to mediation the mediator might suggest a process different from the usual to best fit your situation. However, mediation will usually involve the following steps:

1. The mediator will introduce all the people attending and ask everyone to agree to a process to be followed or some ground rules.
2. The mediator will give each party a chance to explain what they think the problem is.
3. The mediator will help the parties to discuss the problems they have described.
4. The mediator may take time to talk to the parties separately and/or give the parties time to talk to their lawyers or support people.
5. If the parties can come to an agreement, the mediator will help them decide if or how they want it recorded.

The organisation that is mediating your dispute will be able to give you the best information on what happens in their mediation meetings. To find out more about organisations that provide mediation, see How to arrange mediation.

How do I talk and listen during mediation?

Here are some tips to help you get the most out of mediation:

• Explain things clearly and positively.
  For example instead of saying: "You are deliberately not returning my telephone calls to upset me!" You could say: "I would like to make an arrangement about returning telephone calls. I feel upset when I don't receive a reply."
  
• Talk about the things that you decided were important when you were preparing for mediation.
  When it is your time to talk, focus on the issues you decided were important. If you haven't already, see Preparing for mediation.
  
• Try to keep calm.
  People will hear and understand you better if you stay calm. Sometimes this can be difficult. If you are getting upset, you can ask the mediator for a break.
  
• Be understanding if the other party gets upset.
  Everyone finds disagreements difficult. Treat everyone else the way you would like to be treated.
  
• Listen carefully.
  This is your chance to understand what the other party is upset about.
  
• Ask questions.
  If you don't understand something, or you are not sure if you have understood, wait until the person speaking has finished and then ask a question. If you are worried you will forget your question, write it down.
  
• Wait your turn to talk.
  The mediator's job is to make sure everyone gets a chance to talk. You will have a chance to say the things you want to say after the other party or the mediator has finished speaking.

Is mediation confidential?

Mediation is confidential, which means that what is said during mediation cannot usually be used outside the mediation. Be careful though, there are some exceptions, especially if the mediator hears something that affects the safety of someone else, like a child.

You should also be aware that if you give information to the other party during a mediation, although they cannot give evidence about what you said during the mediation (as this is confidential), there is nothing to stop them using this information if your matter goes to court later and they can find the evidence in another way. If you are concerned about giving information that can weaken your case, you should get legal advice before the mediation.

Agreements reached at mediation are also usually confidential. If you reach agreement with the other party and you want to be able to show the agreement to others (for example to a court or government department), there needs to be a term in the signed written agreement saying you can do this.

What happens if we reach agreement?

If you come to an agreement, the mediator may help you put this in writing. Make sure you understand what you are agreeing to. If you are not sure about anything, ask questions. Tell the mediator if you need time to think about things or get legal advice before making an agreement.

How do I enforce an agreement made at mediation?

When you make an agreement at mediation, you and the other party can also agree whether it will be an informal agreement made 'in good faith' or whether it will be enforceable. An agreement is enforceable if it is legally binding and parties can take legal action to make the other side keep to the agreement.

If an agreement is simply 'in good faith' everyone relies on the promise of the others to do what has been agreed. These sorts of agreements usually cannot be enforced.

At mediation, you and the other parties should decide what status you want the agreement to have and what steps you want to take if you want the agreement to be enforceable.

CJC mediations are generally made 'in good faith' and will only be enforceable if all parties agree to sign a legally binding document. There are some exceptions to this, such as where mediation is court-ordered.

If you have been referred to mediation by a court or you are going to conciliation as part of court or tribunal proceedings, you can ask the court or tribunal to make the agreement into an order of the court. This is called making 'Consent Orders'. Consent Orders can be enforced in the same way as any other court order.

  If you reach a confidential agreement at mediation, but you want to be able to show the agreement to others (for example to a court or government department), it is possible to include a term in the signed written agreement saying you can do this.

If you come to an agreement in Family Dispute Resolution, you can then enter into a parenting plan or file Consent Orders with the court. You should get legal advice if you are considering this step.

Before you go to mediation, you should discuss the status of an agreement with a lawyer as part of getting legal advice on your matter. For more information on how to prepare for mediation, see Preparing for mediation.

Can I still go to court if mediation does not work out?

If you and the other people in the legal matter can't resolve the problem in mediation, it is still possible to go to court and have a hearing.

In some types of family dispute resolution, you cannot take the same lawyer that came with you to the mediation to court. ​