Most disputes I see do not begin as legal problems. They begin as misunderstandings between people who once trusted each other: siblings, spouses, business partners, parents and children. By the time lawyers are involved, positions have hardened. Mediation is how those positions are softened again, so that the people involved can make decisions a court never could.
What mediation is
Mediation is a facilitated negotiation. The parties keep control of the outcome; the mediator does not decide who is right. Four features make it work:
- Confidentiality. What is said in mediation to settle a dispute generally stays there, which allows candid discussion.
- Party ownership. The people in dispute decide the terms of any settlement.
- Flexibility. Mediation can address legal, commercial and human concerns together, including matters a court cannot order, such as an apology, a role in the family business or how a parent’s memory will be honoured.
- A neutral facilitator. The mediator improves communication, helps each party understand the other and makes sure decisions are informed.
How a mediation runs
There is no single correct mediation process. Different courts, tribunals and panels use different models: some favour a facilitative approach, some expect the mediator to give a view on the issues, and some prescribe particular steps or documents. I work within each of those frameworks. Within them, I adapt the process to the people in front of me: joint or separate sessions, one day or several shorter sessions, in person or online, with or without lawyers present, with support persons, in English or Mandarin. These choices depend on what is most likely to help the particular parties reach a durable agreement.
A typical mediation still moves from defining the problem to solving it:
- Opening. I explain the process, the ground rules and confidentiality, and set a tone in which people feel safe to speak.
- Opening statements. Each party explains the dispute from their perspective. I summarise what I have heard so each person knows they have been understood.
- Agenda setting. Together we identify the issues to be resolved.
- Exploring the issues. We look beneath positions to interests and concerns, and gather any missing information.
- Private sessions. I meet each party separately, confidentially, to test options and assess risks candidly.
- Joint negotiation. Options are evaluated against practical realities and combined into a settlement package.
- Agreement. Terms are recorded and the steps to implement them are agreed.
What good mediation requires
- Clarity: identifying the legal positions and practical realities precisely.
- Process safety: an environment where people feel secure enough to explore options.
- Interests and options: moving from entrenched positions to interests and creative solutions.
- Decision readiness: guiding the parties to the point where they can commit.
A mediator’s most important contribution is to create the conditions in which difficult decisions become possible.
The disputes I mediate
For examples, see case studies of complex Chinese-Australian mediations and the mediator’s toolkit. Practitioners appointing a mediator can read how I work with lawyers and preparing for mediation.
Background
I am a Nationally Accredited Mediator, an Accredited Family Business Advisor, an accredited Family Dispute Resolution Practitioner, a family law arbitrator, a parenting coordinator and a collaborative practitioner, and I am trained in elder mediation. I sit on mediation panels including those of the Supreme Court of the Northern Territory, the Land Court of Queensland and legal aid. I also appear as a solicitor advocate, so I understand how disputes look at trial, which helps parties assess their risks realistically. I conduct mediations in person in Melbourne and online, in English and Mandarin, with Cantonese support available.
Frequently asked questions
Does the mediator decide the outcome?
No. In mediation the parties decide whether and on what terms to settle. The mediator manages the process, helps each side understand the other and tests options, but does not impose a decision.
Is mediation confidential?
Generally yes. Communications made in a mediation in an attempt to settle a dispute are usually confidential and cannot be used in court, subject to limited exceptions.
Can mediation be conducted online?
Yes. Mediations can be held entirely online, with separate virtual rooms for private sessions, which suits parties in different cities or countries.
Do you use the same process for every mediation?
No. I work within the model required by the relevant court, tribunal or panel, and adapt the process to the needs of the parties in each case.
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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