FAQs regarding preparing for Mediation

There are five critical things you need to do when preparing for mediation:

1. Get a clear head to enter the resolution phase – which may mean first getting some professional help to deal with any strong emotions that might cloud your mind and impede your ability to participate in mediation effectively

2. Get an understanding of all your resolution pathways to know what options you have if mediation is or is not successful 

3. Get a basic understanding of the relevant current Australian law applicable to the situation

4. Have any documentation that might be needed to support your proposals at hand

5. Get personalised legal advice 

Once armed with these five critical elements, you will now be ready to start to resolve your issues at mediation. You will be able to make informed proposals and readily evaluate the proposals that the other person makes, understand how much “wriggle-room” you have to make agreements and the likely costs, consequences and outcomes if you don’t.

Additionally, there are ten critical attitudes to cultivate when preparing for mediation as well:

1. Treat the process as business-like as you can, which may mean leaving your emotions at the door

2. Understand that you are unlikely to receive all of your ideal outcomes, and as such, have thought about compromise proposals you could “live with”

3. Respect the needs of the other participant/s by starting out with reasonable first proposals on the understanding that outrageous proposals only serve to alienate you from future discussions and negotiations

4. Let go of any notions of using the resolution process as a means of exacting revenge, teaching lessons, gaining the “moral-high-ground” or punishing the other person/s

5. Understand that if you set out to bankrupt the other person, then you are very likely to inflict that same outcome on yourself as well – the only people who win out of that type of thinking are the lawyers, and they will win big time!

6. Understand that the concept of “having your day in court” is flawed - going to court will involve many occasions of waiting all day for a short (sometimes as brief as 10 minutes) appearance over many months, or even years, where you will be required to pay your lawyer, and maybe a barrister too, for the whole day each time

7. Understand that a Judge will almost never see the situation entirely one person’s way or the other or make orders that result in a big winner and a big loser.

8. Understand that, as a self-directed autonomous adult, you have the right and the power to sort this out for yourself and that entering your matter into a court is giving up your right to self-determination and letting a Judge, who has never met you before, make very important decisions for you that you’ll have to live with forever

9. For family law parenting matters, the willingness to make all proposals and decisions in the best interests of your children 

10. For family law property matters , understanding that any costs you are your former partner incur on the way to resolution can only come from one source, and that is the joint property pool, therefore the more you spend in the fight, the less there will be left over to divide between yourselves after it is all over 

During the intake session your mediator will advise you that the mediation process will begin with a brief opening statement from each person that is addressed to the mediator and covers what it is that they would like to discuss with other person. It is up to you how you prepare for that and what, if anything, you bring along – some people like to read out a prepared written statement, some like to just have some brief prompting notes and others again prefer to speak off the cuff.

Naturally, most people will come to mediation with a pretty good idea of the ideal outcomes they want to achieve. It is important to recognise that it is very unlikely you will get agreement from the other person to all of your ideal outcomes, because if that was the case you probably would have already resolved your differences without the need for mediation. This means that one of the most important things you can do in preparing for mediation is to consider compromise proposals you could “live with” and a willingness to respectfully listen to the other person and work flexibility with them to reach “mutually good enough” outcomes.

You can bring along any relevant documentation that supports your proposals, such as a contract, invoice or receipts, valuations or bank statements, etc. 

There are no set dress codes for mediation. As sessions can be 2 to 3 hours long, or sometimes longer, it is important that you feel comfortable for the duration. As mediation usually occurs in office style meeting rooms, it can be a good idea to wear layers so that you can easily adjust if you feel too hot or cold on the day. Your mediator will do their best to ensure the room temperature is comfortable, but sometimes these matters can be fully controlled.