Mediation process

Mediation is a simple and confidential way to resolve disputes. In this process, the parties work with a mediator to identify the issues, develop and explore settlement options, assess the implications of settlement options and negotiate an agreement that will work for everyone.

The aim is to empower parties to resolve conflicts quickly and affordably without needing a decision from a judge or arbitrator. Mediation allows for flexible and creative solutions beyond strict legal rules.

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Process Overview

Starting the process

Parties need to agree to engage in mediation. They can do this before or after the dispute has arisen.

Learn more

Appointment of a mediator

A mediator will typically be appointed within 3 Working Days, or sooner for urgent cases.

Preparation

Good preparation by both the parties and the mediator is key to a successful mediation. Ensure you are set up for success before the mediation begins.

Opening statement

An opening statement in mediation is an initial opportunity for each party to express their perspectives and goals, setting the groundwork for negotiation.

Issue identification

In mediation, identifying issues is key to understanding the conflict and facilitating discussions towards a mutually acceptable resolution.

Joint sessions and caucusing

Mediation processes typically involve joint sessions and caucusing. These stages alternate as needed to facilitate effective resolution.

Outcomes

Mediation outcomes can range from full to partial settlements or no resolution, but the process is always beneficial in developing understanding, preserving relationships, and ensuring confidentiality.

Cost of mediation

Our focus is on delivering cost-proportionate process solutions. Find out more about the cost of mediation.

Step 1. Starting the process

To start, both sides need to agree to use mediation. They can do this by using the NZDRC model mediation clause in their contract, which allows any future disputes to be solved this way.

Even if they didn’t use the clause in their contract, they can still choose to use mediation by signing a mediation agreement.

If the parties agreed to use mediation before the dispute, to initiate the process, the applicant (the person starting the process) needs to send a Notice of Mediation to let the other side know. This isn’t needed if the parties agreed to mediate after the dispute started.

The applicant starts the process by applying to NZDRC. A Registrar will be assigned to the case to help the parties, their advisors, and the mediator throughout the mediation.

Step 2. Appointment of a Mediator

The New Zealand Dispute Resolution Centre (NZDRC) is responsible for appointing a mediator unless the parties involved have agreed on a specific person. This appointment is made once NZDRC receives a completed application and payment. If the parties have someone in mind, that person must meet certain criteria, and NZDRC has to agree that they are suitable, independent, and impartial.

When selecting a mediator, NZDRC considers various factors, such as any agreements between the parties, the nature and value of the dispute, and the availability of the person to effectively mediate the case. The appointed mediator must be neutral and can’t act as an advocate for any party. Any appointment made by NZDRC is final and confirmed by a Notice of Appointment issued by the Registrar.

Step 3. Preparation

Before engaging in mediation, both the mediator and the parties involved must ensure they are well-prepared. The mediator may speak with the parties in advance of any joint mediation session to introduce themselves, establish a structure for the mediation to follow, and answer any questions the parties might have. The mediator’s preparation will also involve gaining a good understanding of the dispute, the parties involved, and the context in which the mediation has arisen.

Depending on the nature of the dispute, the mediator may request that the parties exchange position statements prior to the mediation. A position statement is a document prepared by each party prior to mediation. It outlines their understanding of the dispute, their positions, and their interests. It helps to clarify the issues at hand and sets the foundation for discussions during mediation. The position statement is typically exchanged between the parties and the mediator, providing everyone with a clear overview of the dispute and each party’s stance.

Mediation is a negotiation, and it is also useful to think about the needs and interests of the other party and to think about possible options for mutual gain or satisfaction. After all, mediation provides a forum for the parties to engage constructively and to problem-solve with a view to resolving their dispute in a way that all parties are content with.

Step 4. Opening statement

An opening statement in mediation is the initial step in the process where both parties get a chance to present their side of the story. In essence, it’s each party’s introduction to the dispute, where they outline their main concerns, interests, and what they hope to achieve from the mediation.

The purpose of an opening statement is to set the stage for the discussions that will follow. It provides a safe and structured space for each party to express their feelings and perspectives without interruption. This helps everyone involved to understand the situation from each other’s point of view, laying the foundation for a constructive dialogue and negotiation process.

Step 5. Issue identification

In mediation, identifying issues is a crucial step where the mediator helps the parties involved to distinguish and understand the key points of conflict that need to be resolved. This is not about deciding who is right or wrong but rather about understanding what matters most to each party.

It’s important to acknowledge that mediation is a flexible process and may be conducted in many ways. However, in the early stages, the mediator is likely to guide a joint discussion where everyone openly talks about their concerns. This helps to bring the underlying issues to the surface. These could be misunderstandings, differences in expectations, or conflicting interests. Once these issues are identified, they can be addressed one by one in the mediation process. 

This step of issue identification can help to clarify the dispute and can often reveal that parties have more common ground than they initially thought. This makes it easier to move forward towards finding a mutually acceptable resolution.

Step 6. Joint sessions and caucusing

During a mediation process, joint sessions and caucusing are two common stages. In a joint session, all parties come together to discuss the issues at hand. With the help of the mediator, they openly share their points of view, concerns, and what they hope to achieve. In joint session, everyone is able to get a clear understanding of each other’s perspectives and the issues that need resolving.

A caucus, on the other hand, is a private session where the mediator meets with each party separately. These meetings are confidential and allow each party to openly discuss their concerns and potential solutions with the mediator. The mediator can then use this information to help guide the parties towards a resolution that is acceptable to everyone. These private meetings are a safe space where each party can feel comfortable to express their thoughts and feelings without judgement. A mediator will not share anything disclosed during caucus with the other parties without permission.

During a mediation, the parties may move in and out of joint sessions and caucusing as required to allow the mediation to proceed as effectively and efficiently as possible.

Step 7. Outcomes

The outcomes of a mediation process can vary. In some cases, parties may reach a full settlement where all issues are addressed and agreed upon. This is the ideal outcome, leading to a formal agreement that is mutually satisfactory and binding for all parties involved. The agreement may be comprehensive, addressing all aspects of the dispute, or it may be limited to specific points of contention.

In other instances, a partial settlement may be achieved where some but not all issues are resolved. This can still be beneficial as it can narrow down the areas of dispute and make any further negotiations or legal proceedings more manageable.

There are also cases where no settlement is reached. While this might seem like a failure, it’s important to note that the mediation process itself can still be beneficial. It provides a platform for parties to express their views and understand each other’s perspectives, which can lead to a clearer understanding of the dispute. This can be valuable in maintaining relationships and could potentially facilitate future negotiations.

Regardless of the outcome, confidentiality is a fundamental aspect of mediation. Anything discussed during the process is generally confidential and cannot be used in court or disclosed outside of the mediation without consent. This encourages open and honest communication, as parties can speak freely without fear that their words will be used against them later. This confidentiality extends to the mediator as well, who is typically not allowed to disclose any information about the mediation process or its outcome, unless required by law or agreed by all parties.

Next steps

Mediation rules

Discover more about NZDRC’s mediation process, which is tailored to deliver early and cost effective resolution.

Looking for a model clause?

Access our complete guide to model clauses for all our process options.

Agreeing to mediate

Get the right model clause in your contracts today or request a template Mediation Agreement.

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