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Mediation involves a neutral third party who facilitates parties to reach an agreement. The mediator is appointed by the parties or by a Court. The mediator does not determine disputes as an arbitrator, or a judge would, or provide legal advice.
A mediator assists parties identify and explore options, negotiate and resolve their dispute.
Models of mediation include:
In a therapeutic mediation, parties assisted by the mediator deal therapeutically with the underlying causes of the problem with a view to improving the relationship as a basis for resolving the dispute.
In a settlement mediation, the mediator encourages parties to compromise by use of persuasion, reality testing and pressure. The mediator encourages the parties to move from their fixed positions.
In facilitative mediation, the mediator meets with both parties, uses their skills to facilitate discussion of the participants’ issues and concerns, and helps them explore options and possible solutions. In this model, the mediator encourages and enables the participants to find their own solutions.
In the case of evaluative mediation, the mediator is usually experienced in dispute and can offer their advice as to the likely outcome in Court and is more directive in the approach to the mediation. The mediator in this situation needs to be careful that they are not overstepping and providing a solution that really is his or hers and not that of the parties.
The evaluative and facilitative models are commonly used in family law matters.
These are conducted either at the beginning of the mediation or earlier, with the mediator and each party (and their lawyers) separately.
The mediator explains in this Opening Statement their impartiality and the confidentiality of mediation and the process itself.
Each party (or their lawyer) makes an Opening Statement in a Joint Session (if applicable), and the mediator summarises those statements.
They then write an agenda and ask the parties to prioritise the issues.
Through the exploration stage, the participants and the mediator explore the underlying concerns, interests and needs to lead onto options/obstacles.
The participants and the mediator come back into a joint session (if applicable) to refine options into possible solutions.
The mediator assists the participants in documenting the agreement.
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