2. Is mediation different from traditional settlement discussions?
3. What is the mediation process?
4. What are the advantages of mediation?
5. How is mediation different from arbitration?
8. Should you also get legal advice?
9. When is mediation appropriate?
10. What types of disputes can be mediated?
11. When is mediation NOT appropriate?
12. Who should attend the mediation?
13. Can what is said in mediation later be used in court?
14. Is mediation confidential?
15. Does mediation result in a legally binding agreement?
18. Where do I find a mediator?
21. At what stage can mediation be sought or suggested?
22. What happens after the mediation?
Mediation is a dispute resolution process where mediators help people to agree on how to resolve matters that are in dispute. Mediators do not decide who is right and who is wrong. Their job is to assist people in dispute to agree on how to resolve the dispute. Mediators are trained to help people in dispute negotiate with each other towards an agreed solution to the dispute.
If the people in dispute can agree on how to resolve their dispute, they avoid the cost of going to court. They also avoid the risk that (if they do go to court) they might lose the case or not get everything that they want.
Mediation is designed to let people keep control over their disputes. How decisions to resolve matters in dispute are made, when they are made and what decisions are made is controlled by the people in dispute - not handed to a court or tribunal.
Mediation looks like a round table conference, where you and the other people in dispute, with the assistance of a mediator, discuss what each person needs to settle the dispute. Solutions arrived at can be written down and can be legally enforceable.
2. Is mediation different from traditional settlement discussions?
People in dispute often try to resolve their dispute by settlement discussions. Mediation differs from traditional settlement discussions in several ways:
• Mediation provides a way for people in dispute to resolve their disputes by focusing on their interests and concerns. On the other hand, traditional settlement negotiations usually focus on reaching a compromise based on legal rights and obligations.
• Mediation requires the people in dispute to meet face to face. This allows all areas of concern to them to be dealt with, and helps keep the problem in their control.
• Independent mediators help the people in dispute to identify precisely what the issues are between them, and encourage them to resolve these. Having an impartial person taking part in the dispute resolution process allows them to air their views in a non-confrontational way.
3. What is the mediation process?
The mediation is opened with introductory remarks from the mediator, who explains the process and how it differs from other forms of dispute resolution such as arbitration. The parties agree on the rules for the conduct of the mediation to ensure that everyone gets a fair hearing.
Each party then has an opportunity to explain how they see the dispute. This enables the problems to be defined before settlement options are explored. A ‘joint session' follows, at which issues are identified and settlement options explored.
The mediator may then consult separately (and confidentially) with the parties: some people call this ‘caucusing'. The purpose of these private sessions is to enable the mediator to understand how each party perceives their strengths, weaknesses and particular grievances in the absence of the other parties, which may help in developing settlement options.
The mediation might then proceed to a further joint session and further caucusing, as the parties and the mediator think appropriate, until an agreement is reached or it becomes clear that agreement will not be reached.
4. What are the advantages of mediation?
• Cost and time effective.
• Voluntary - All parties have the right to withdraw from mediation at any time.
• Informal - The parties and the mediator agree to rules of conduct before the mediation to ensure that each party is given a full and fair hearing. There are no rules of evidence to restrict what is discussed.
• Controlled by the parties.
• Private and confidential.
• Privileged - Unless ALL parties agree, nothing that is said at or in connection with the mediation can be repeated by the parties or the mediator in court if the mediation does not result in agreement. No documents produced at or in preparation for the mediation (such as correspondence between the parties concerning the mediation, mediation position statements, calculations or similar documents) can be used in court proceedings.
• However, if the mediation results in the parties reaching agreement, and subsequently a party wishes to take court action against another for breach of the agreement, matters dealt with in the mediation, or which are incidental to it, may be raised in court proceedings.
• An opportunity for the parties to preserve or resurrect their relationship - Very often a dispute occurs between parties who had a good working relationship until one disagreement threatened to destroy it. Because a court is a forum where the parties behave in an adversarial way, litigation often destroys relationships and can be an unpleasant experience for all concerned. Even the ‘successful' party often suffers because of loss of a relationship as a result of the litigation. Mediation, on the other hand, is designed to minimise the disruption (both commercial and personal) to relationships in which a dispute arises. Jointly finding a resolution through mediation may mean the parties can restore their relationship and have future dealings.
• A means of dispute resolution which is additional to going to court - Even if a mediation does not result in the parties reaching a binding agreement, the process will almost always have given the parties a clearer insight into the dispute, and often makes subsequent ‘without prejudice' settlement negotiations easier. It may mean there are fewer issues to be determined by the court. If the mediation does not succeed, the court is still available.
5. How is mediation different from arbitration?
Although both of these processes are alternatives to litigation, they are very different in method. In arbitration, the parties agree to be bound by the decision of the arbitrator and the arbitrator is required to make a decision. In mediation, the parties make the decision by reaching a legally enforceable agreement with each other, which is facilitated by the mediator. Arbitration is also generally a much more formal process than mediation, which offers maximum flexibility to enable the parties to reach an agreement.
Mediators ensure that discussions are orderly, and that all parties have a say. Mediators will not give advice or tell the parties what to do.
Mediators will assist parties to talk about their concerns and ensure that the discussion is balanced and fair.
The mediator will help the parties to work out precisely what problems need to be solved in order for the parties to reach agreement. The mediator may help the parties find solutions to their problems, and to consider whether those solutions are practical.
The mediator is required to be:
• neutral;• impartial;
• skilled at helping people if they become emotional while discussing their problems; and
• skilled at managing the mediation process.
The mediator seeks to assist the parties to take responsibility for resolving the dispute by:
• encouraging the parties to speak for themselves;
• assisting the parties to identify their interests, concerns, needs and options; and
• supporting the parties in making their own decisions to resolve the dispute.
• give legal advice;
• offer counseling;
• make decisions; or
• take sides with either party.
It is important to get legal advice if you can before using mediation so that you are well informed about your legal rights and obligations.
9. When is mediation appropriate?
You should consider mediation when you recognise clusters of the following indicators, which often make people feel frustrated or stuck:
• the time spent on the issue is longer than anyone would reasonably expect;
• intense emotional states are dominating;
• there is a lack of motivation on the part of the parties to reach a conclusion;
• there is contradictory information from the parties;
• increased spending is seen as the only solution; or
• the same solution is tried repeatedly but fails.
10. What types of disputes can be mediated?
Most disputes are capable of being mediated but there may be personality factors that make it inappropriate, for example where violence has occurred or mental health is an issue. Most kinds of disputes can be mediated because the parties work out the solutions themselves. Examples include: commercial disputes, partnership disputes, breaches of contract, tenancies and insurance.
Mediation may not be appropriate if some of the following factors are present:
If these factors are present people affected may be assisted by the services available through Family Services Australia. The website is http://www.fsa.org.au/
The mediator
The parties
If the parties are represented by lawyers, the lawyers may attend. Most mediators prefer either both parties to be represented or neither. If one side is represented and the other is not, the mediator may adapt the process to deal with that situation.
Parties may bring persons who can give them support – emotional or technical - during the mediation.
If persons attending a mediation represent, for example, a corporation or other organization that is a party to the dispute, they must have sufficient authority to reach agreement for that party.
It is very important that, on each side of the dispute, there should be someone with authority to settle the dispute. For example, where insurance is involved, there should be someone from the insurance company with authority to agree to pay an appropriate amount.
Mediation is confidential and what is said during mediation cannot be used later in Court. There are some circumstances where information gained from a third party about the mediation may be raised. See 4. ‘ What are the advantages of mediation? '
14. Is mediation confidential?
Negotiations during the course of mediation will usually be and remain confidential. The agreement reached at mediation may or may not be confidential depending on the nature of the agreement and the need for disclosure for implementation and accountability.
15. Does mediation result in a legally binding agreement?
The people in dispute can agree to resolve their differences in any way that they choose. Often, they agree to enter into a legally binding agreement. This means that, if one of them does not honour the agreement, the other can enforce it in court.
Often, the people in dispute are not ready to enter into a legally binding agreement but still write down what they have agreed to, so that there is no disagreement later about it. Sometimes, their lawyers use this document to produce a legally binding agreement that the parties sign later.
Mediation is always voluntary, in the sense that you cannot be forced to agree to settle your dispute.
Often parties agree to mediate their dispute.
There are some Acts of Parliament that require mediation before people can go to court, for example, in disputes under the Retail Leases Act 1994 (NSW), the Farm Debt Mediation Act 1994 (NSW) and the Native Title (New South Wales) Act 1994 .
All NSW courts can order the parties to attempt mediation, whether they agree or not.
Usually, the parties choose a mediator by agreement. Where the parties cannot agree on the appointment of a mediator, the Supreme Court has a mechanism for appointing mediators. See: http://www.lawlink.nsw.gov.au/practice_notes%5Cnswsc_pc.nsf/pages/320
18. Where do I find a mediator?
The NSW Bar Association maintains a register of members who are qualified mediators. This register can be viewed on the Association's website at:
http://www.nswbar.asn.au/Professional/ADR/adr051001.htm
Other mediation providers include:
• Australian Branch of the Chartered Institute of Arbitrators
• Australian Commercial Disputes Centre
• Institute of Arbitrators and Mediators Australia
• Law Society of New South Wales
• LEADR
• NSW Supreme Court
• Federal Court of Australia http://www.fedcourt.gov.au/litigants/mediation/mediation.html
Most mediators charge fees per hour or per day for mediating, which are paid by the parties. Usually they share the costs equally. Parties who would suffer hardship from this should inform the court or tribunal in which the dispute is being determined.
In most cases, there are no set fees and different mediators charge different fees. Most barristers who work as mediators charge the same fees as for appearing in court. For further information ask the person you have in mind as a mediator.
A party can suggest mediation at any stage during proceedings before a court or tribunal prior to the matter being finally determined. It is never too late. Parties can seek to settle a dispute by mediation even when the matter is on appeal.
22. What happens after the mediation?
If the dispute is in court and the parties resolve the whole dispute, they usually have their lawyers terminate the court proceedings. In this situation, usually the court makes no orders about legal costs.
If a court has ordered the mediation and the mediation does not result in settlement of the dispute, usually the mediator reports this to the court so that the court proceedings can continue. Usually, everything about the mediation remains secret from the court except that it did not result in a settlement.
See also ‘ Privileged ' under FAQ 4. ‘ What are the advantages of mediation? '
If the parties resolve the whole dispute at a mediation, they often agree to keep everything about the dispute and the mediation secret, including the fact that there was a mediation and the terms of the settlement. That way, it remains their business and no-one else's business.
See also FAQ 15. ‘ Does mediation result in a legally binding agreement? '