The Shaw Mediation Process
Before the joint mediation process begins, the mediator consults with everyone separately in an individual private session, to understand your perspective on the conflict. This allows the mediator to assess the suitability of your case for mediation, learn the various points of view on the conflict, as well as any possible factors that may hinder the process. At this stage, relevant documents and information can also be identified, obtained and exchanged. The joint mediation session then follows.
Joint Mediation Session:
Everyone who has settlement authority will attend the joint mediation session. An independent, neutral, legally-trained mediator lays out the guidelines of the discussion, as well as the roles of the parties involved. Concerns raised by both sides are explained and summarised, and the participants agree that these will form the agenda of topics for the joint mediation session. We advise and encourage everyone to consult their lawyer prior to and during the discussion, however it is not a requirement for lawyers to attend a joint session of the resolution process. While the mediator controls the process, you agree on who speaks first and both sides control the flow of everyone discussion. As topics are covered, options for resolution are generated and evaluated until everyone arrives at a mutually satisfying outcome – legally and personally. Once agreed on a resolution, the mediator has it documented and signed by all parties, and you may wish to have the outcome sent to your lawyers and any other stakeholders involved in the dispute to be legally formalised.
Individual Private Session:
At times, the joint session can become intense, and you can take a break if you feel stressed. Our mediator will then speak with you privately to check in with you about your experience in the joint mediation session, as well as explore possible outcomes and reality-test them in private. This discussion is not revealed to the other side unless permitted by you. When you are ready, the joint mediation session resumes for further negotiations and exchanges of offers and settlement.
Memorandum of Understanding (MOU):
A Memorandum of Understanding or MOU is a documented record of the outcome once agreement is reached during a joint mediation session. It signifies an intention to negotiate a contract in the future, and can be legally formalised by your lawyer. An MOU is not intended to be a legally binding document, and it’s primary purpose is to ‘kick-start’ an agreement or formal legal document, if you wish to have one. It allows you to consider how the outcome developed in the mediation will work and gives you an opportunity to get legal advice before signing a legally binding agreement. An MOU is also ‘without prejudice’, i.e. it cannot be used as evidence of what you may or may not have agreed to during the mediation.
Section 60i Certificate:
A Section 60i Certificate is particularly relevant to family disputes that involve custody or parenting issues. The Section 60i Certificate, or Certificate of Attendance, is required before parents submit an application to the court for a parenting order, under the Section 60i of the Family Law Act 1975. This document aims to show that both sides attempted to resolve their issue through family dispute resolution or mediation. The S.60i certificate will be issued based on the following circumstances:
- One person did not attend the mediation/FDR because the other party refused or failed to attend.
- The mediator or the family dispute resolution practitioner did not see the issue fit for mediation, so both sides did not attend.
- All the participants were present during mediation or family dispute resolution, and genuinely tried to resolve the dispute.
- All the participants were present during mediation or family dispute resolution, but they did not make an effort to resolve the issue.
- All the participants were present in mediation or family dispute resolution, but the mediator did not see it appropriate to continue the mediation process for the dispute.
Alison Shaw of SHAW Mediation successfully mediated a contract and building works dispute for one of our clients. I found the mediation to be useful in requiring the disputing parties to be in one place at one time, allowing each side to express their position (and even vent their frustrations) whilst being kept in line by an experienced mediator. It was by no means certain to me beforehand that the matter would resolve at the mediation, but Alison’s guidance and systematic approach facilitated a commercial settlement. I am confident the parties would not have reached a better outcome if they had gone to court. I rate highly the mediation process used by Alison Shaw in this matter, and would recommend her to other clients considering mediation in the future.Matthew Hawke