The outcome of a mediation is largely decided before the day begins. Parties who arrive prepared, with the right information, realistic expectations and the authority to settle, give themselves the best chance of resolving the dispute. This guide sets out what I ask of parties and their lawyers, and why.
Choose the right time
Timing matters as much as preparation. Mediation is most useful when the parties are able to make decisions, emotionally as well as legally.
- Separations. Many separating couples are not ready to negotiate in the first months after separation. Mediating too early can harden positions; leaving it too long can entrench them through litigation.
- Estate disputes. Many estate disputes only become ready to settle once proceedings have started and the parties have seen the evidence, but there is often a window before costs escalate.
- Family business disputes. The best time is usually before a breakdown becomes public: before an oppression application, a board removal or a dismissal.
Part of my pre-mediation work is assessing whether a matter is ready, and what would need to happen first.
Prepare a short position paper
A position paper of five to ten pages is usually enough. It should set out the key facts, the legal issues, the evidence that matters most, what the party wants and why, and any obstacles to settlement. Longer documents are rarely read with the attention they need on the day.
Exchange information before the day
Many mediations stall because one side does not have information the other has: valuations, accounts, medical records, trust deeds or bank statements. Exchanging documents in advance often changes people’s minds more than any argument in the room. Where information is missing, I will identify it in the pre-mediation conference so it can be obtained.
Understand your alternatives
Mediation asks parties to make difficult decisions by comparing a proposed settlement with the best and worst realistic outcomes of litigation. That requires the same preparation as for court: the strengths and weaknesses of each side’s case, the likely range of outcomes, costs and the time to trial. In estate and trust disputes, the party who benefits from the status quo, such as an executor in possession of assets, must also consider what continuing litigation will cost them.
On the day
- Opening. I speak slowly and explain the process carefully, in English or Mandarin, so that every participant understands what will happen and feels safe to take part.
- Opening statements. Lawyers should present their client’s case clearly, without alienating the other side. A measured statement, and sometimes a well-chosen concession, can show good faith and test the other party’s resolve. The aim is to persuade the other party, not to defeat their lawyer.
- Hearing the people. Mediation allows parties to speak for themselves and bring their humanity into the room, which a courtroom rarely does. Clients often need to be heard before they can negotiate.
- Private sessions. Reality testing takes place in private, where questions can be asked that are not for the other party to hear. Offers and counter-offers are usually carried by the mediator between rooms.
- The mediator’s view. Some panels and parties want the mediator to give a view on likely outcomes; many mediations work best when the mediator does not. I adjust my approach to the panel’s model and what will help the parties.
- Breaks and meals. Mediations are long. Hunger and fatigue affect judgment, so I schedule breaks and keep parties in separate rooms for meals when that is more comfortable for them.
Working with the mediator
The most effective lawyers engage with the mediator throughout the day: sharing what their client really needs, pushing back where they disagree, and working with the other lawyer to find solutions. Comparable decided cases can be useful, and I will often ask both lawyers to work through them together. The lawyer best equipped to win at trial is not always the one who settles best at mediation; the conversation needs to feel like a joint search for a solution.
Closing the agreement
When agreement is reached, the terms should be recorded on the day, with the documents needed to implement them: consent orders, a deed of settlement, court approval where required, and steps for transferring assets, including assets overseas. If a matter does not settle on the day, I follow up with both sides, because many disputes settle in the following weeks.
How we assist
I mediate family, estate and business disputes in English and Mandarin, in person in Melbourne or online, and adapt the process to the panel and the people involved. Lawyers can contact our Melbourne office on +61 3 9602 3988 to discuss a matter. See also for lawyers: appointing a mediator, the mediator’s toolkit, with case studies and how I mediate.
Frequently asked questions
How long should a position paper be?
Usually five to ten pages, setting out the key facts, legal issues, important evidence, what the party wants and why, and any obstacles to settlement.
When is the right time to mediate a separation?
Many separating couples are not ready to negotiate in the first months after separation. The right time depends on the parties and on whether valuations and disclosure are complete.
Will the mediator tell us who is likely to win?
It depends on the panel model and the parties’ wishes. Some mediations benefit from the mediator’s view; many work best when the mediator does not give one.
What happens if the matter does not settle on the day?
The mediator follows up with both sides, because many disputes settle in the weeks after a mediation.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice. Victorian law unless stated otherwise.
简体中文 
English (Australia) 
繁體中文