How does mediation work?
One of our qualified mediators guides the disputing parties to a mutually agreeable settlement. It consists of at least one joint mediation session and an individual session with each party.
If the parties need some time to think, or further information is needed, further sessions are scheduled.
Once the parties have reached an agreement, the mediator prepares a Memorandum of Understanding which is signed on the spot. A Memorandum of Understanding is a binding agreement, but in shortened form, where the parties record the terms of their agreement.
Using the terms contained in the Memorandum of Understanding, we prepare a full Settlement Agreement or Parenting Plan for the parties to sign in due course.
Once the final Settlement Agreement or Parenting Plan has been signed, the parties can take it to their attorneys to attend to the formal process of making it an Order of Court. If the parties do not yet have legal representatives, we assist our clients by ensuring that the necessary steps are completed by our affiliate firm of attorneys.
Frequently Asked Questions
My spouse and I are already busy litigating; can we still mediate?
Absolutely. In many cases, parties commence mediation far into the litigation. In the majority of these cases, the parties are able to reach a settlement.
Can the fact that I want to mediate be used against me in Court?
No. Mediation is a without prejudice process, which means nothing you concede in mediation can be used against you in Court. In fact, the Courts encourage parties to mediate because it is such a powerful dispute resolution mechanism.
Can I mediate over Skype, Zoom or Teams?
Yes you can. Provided there is a steady line of communication, our mediators can assist you.
How long does mediation take?
It depends on the complexity of the issues, and the level of cooperation of the parties. In most cases, the process consists of 2 one-hour individual sessions (one with each party) and a ninety-minute joint session. These sessions are usually spaced over two days. If the mediation is successful, the final Settlement Agreement / Parenting Plan is usually provided to the parties within 48 hours.
Does the mediator make any decisions on behalf of the parties or have the final say?
No. The mediator merely helps the parties to reach a fair and mutually acceptable agreement on their own. If the parties cannot agree on an aspect, the mediator has no power to make the decision on behalf of the parties.
If I sign a settlement agreement during mediation, is it binding?
Yes it is. A memorandum of understanding or settlement agreement, once signed by the parties, is binding. The Family Advocate (if there are kids involved), and ultimately the Court may provide their input in due course, but the parties cannot simply withdraw from the agreement.
Can I still mediate if there are children involved?
Absolutely! The Courts encourage parties to mediate when there are children involved. In fact, some legislation like the Children’s Act prescribe that parties MUST mediate in certain circumstances. Mediation is particularly well suited to cases involving children because it is low-conflict.
Can I try mediation again if it failed previously?
Yes you can, provided that you and your spouse are both in agreement to mediate again.
Can I force someone to mediate?
Mediation is a voluntary process; you therefore cannot force anyone to attend mediation. The Courts, however, frequently show their displeasure towards people who refuse to mediate. This displeasure usually takes the form of adverse costs orders being made against such people. People who refuse to mediate are furthermore usually required to provide full reasons to the Court for their refusal.