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