Anyone can put two parties in a room. What makes mediation work is the mediator’s technique: the questions asked, the order in which issues are taken, when to bring people together and when to separate them, and how to help people move from what they demand to what they actually need. This article explains the techniques I use and shows them at work in anonymised case studies.
The case studies are composites. Names, details and outcomes have been changed so that no party can be identified, consistent with the confidentiality of mediation.
Core techniques
The process itself is a tool. I do not use one fixed model: I work within the frameworks required by different courts, tribunals and panels, and I design each mediation around the parties, choosing between joint and separate sessions, single-day or staged mediations, and facilitative or more evaluative approaches according to what each case needs. The case studies below each used a different process.
- Active listening and summarising. After each opening statement I summarise what I have heard, in neutral language and, where needed, in both languages. People who feel heard become far more willing to listen.
- Reframing. Turning accusations into underlying concerns. “He stole from the business” becomes “you are concerned that money was taken out without agreement, and you want an accounting”. The concern can be addressed; the accusation cannot.
- Separating positions from interests. A position is what someone demands; an interest is why they want it. Most settlements are built from interests.
- Questioning. Open questions to understand; hypothetical questions to test options (“if the business stayed with your brother, what would you need to feel that was fair?”); and future-focused questions to move past blame.
- Reality testing. In private session, I help each party weigh the best and worst realistic outcomes of going to court against what is on offer, including cost, delay, publicity and the effect on family relationships.
- Strategic use of private sessions. Private sessions allow candour that is impossible in joint session: admissions of weakness, emotional concerns, or proposals a party does not want to be seen to make first.
- Managing power imbalance. Where one party has more information, money, language ability or family status, I adjust the process: disclosure before mediation, separate rooms, breaks, support persons, and ensuring each party has independent legal advice.
- Breaking impasse. Packaging several issues together, trading issues of different value to each side, staging payments, bringing in an independent valuation, or drafting a single working document that both sides refine.
- Culturally aware facilitation. Allowing elders to be heard first, giving people ways to change position without losing face, and recognising when silence means disagreement rather than consent.
- Drafting for durability. Settlements fail in implementation as often as in negotiation. Terms must deal with tax, timing, transfer mechanics and what happens if something goes wrong.
Case study 1: The restaurant brothers
Two brothers had run a group of restaurants for twenty years with equal shares. The younger brother wanted to expand; the older brother wanted to sell and retire. Each had stopped speaking to the other, and each had instructed lawyers to wind up the company.
Techniques used: In separate preparatory meetings, it emerged that the older brother’s real concern was not money but his health and his wish to spend time with his grandchildren in Guangzhou, which he had never told his brother. Reframing his position (“he wants out”) as an interest (“he needs certainty and time, and an income”) opened the way to a staged buy-out: the younger brother acquired the shares over four years, funded from profits, with the older brother as a paid consultant for the first year. An independent valuation, agreed at the mediation, removed the argument about price.
Case study 2: The family home after a father’s death
A widow and her three adult children disagreed about the family home in Melbourne. Two children wanted it sold; the youngest, who lived there and had cared for their father, wanted to stay. The widow, who spoke mainly Mandarin, said little in joint session.
Techniques used: Recognising that the widow’s silence did not mean agreement, I met her privately in Mandarin. She did not want the house sold while she was alive, but did not want to be seen to take sides against her children. A proposal was developed that she could support without confronting anyone: she would keep a right to live in the house for life, the youngest child would pay the outgoings and live with her, and on her death the house would be sold and divided equally, with an adjustment recognising the youngest child’s care. Each child could accept it because it came from honouring their mother’s wishes.
Case study 3: Separation with assets in two countries
A separating couple had a home in Melbourne, a family trust holding investment properties, and an apartment and business interest in China. The husband controlled the trust and held most of the financial information; the wife spoke limited English and feared she would be disadvantaged.
Techniques used: The power imbalance was addressed before the mediation began: full disclosure of the trust accounts and the Chinese assets was required, the wife was supported to obtain independent legal advice, and the mediation was conducted in Mandarin with documents in both languages. On the day, the parties were in separate rooms. Reality testing helped the husband see that a court would likely treat the trust assets as available for division. The agreed package gave the wife the Melbourne home and a cash payment, the husband kept the Chinese interests, and the agreement was formalised by consent orders and the documents needed for the transfer in China.
Case study 4: The family company and the next generation
A family manufacturing company was owned by a father, his two sons and his daughter. The daughter was the most qualified to lead the business, but tradition and the father’s expectation favoured the elder son. Board meetings had broken down.
Techniques used: The mediation was run in stages: first with the father alone, then with the siblings, then with all four together. Separating the questions of ownership, management and family relationships allowed each to be resolved on its own terms. The father kept the chair for a fixed period; the daughter became chief executive with an independent director on the board; the elder son took a defined role in the business he cared most about; and the family agreed to prepare a family charter with the help of their accountant. The father could accept the change because it was framed as building a structure to secure his legacy, not as his children overruling him. See mediating within family groups and family businesses.
What these cases have in common
In each case the legal positions mattered, but the settlement came from understanding what each person needed and designing a process in which they could say it. That is the mediator’s real work: creating the conditions in which difficult decisions become possible.
How we assist
I am a Nationally Accredited Mediator, an accredited Family Dispute Resolution Practitioner, a family law arbitrator and an Accredited Family Business Advisor, and I sit on court and tribunal mediation panels. I mediate in English and Mandarin, in person in Melbourne or online. See also how I mediate and case studies of complex Chinese-Australian mediations.
Frequently asked questions
What is reality testing in mediation?
In private session, the mediator helps each party compare what is on offer with the realistic best and worst outcomes of going to court, including cost, delay and the effect on relationships.
Why does a mediator meet the parties separately?
Private sessions allow parties to speak candidly about weaknesses, emotions and possible offers that they would not raise in front of the other side.
How does a mediator deal with a power imbalance?
By adjusting the process: requiring disclosure in advance, using separate rooms, allowing support persons, ensuring independent legal advice and conducting the mediation in a language the party is comfortable with.
Are the case studies real?
They are composites. Details have been changed so that no party can be identified, consistent with the confidentiality of 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.
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