FAQ

What is Mediation?

A non-adversarial, out-of-court alternative for resolving disputes between two or more parties in conflict. It is a process in which the parties to a dispute, with the assistance of an independent and impartial third person (the Mediator), identify the issues, develop and explore options, consider alternatives and endeavour to reach a mutually beneficial solution to their conflict.

Mediation is a confidential informal process where the parties in conflict negotiate and reach a decision about their own dispute. The Mediator has specialised training in communication, facilitation and negotiating skills, and assists parties to:

• communicate effectively in a neutral environment;
• identify the key issues in the dispute;
• explore these issues in depth;
• achieve the best possible joint decisions the circumstances allow;
• collaborate on a written agreement to resolve the issues in the dispute.

What can mediation do for me?

Mediation can help you in resolving your dispute by:

• giving you the opportunity to talk about the issues and your side of the story;
• empowering you to make your own decisions and have direct control over the outcome;
• helping you reach a mutually acceptable resolution with the other party;
• providing a more relaxed, informal environment in which to come to an agreement;
• maintaining or improving your relationship with the other party;
• providing you with the ability to include provisions in a mediation agreement that a court can’t order or allow, such as an apology, payment plan, or job reference;
• saving you time, stress and expenditure.

If I choose mediation, will I still need a lawyer?

In most mediations, it is not necessary for a lawyer to be present because the parties are trying to work together to solve their problem. The parties are not trying to convince a judge or arbitrator of their point of view. There are only a few straightforward rules for mediation that are clearly stated before each case begins. If your situation involves substantial property or legal rights for instance, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. In these types of situations, you may want to make a lawyer's approval a condition of any agreement you reach. In any case, you are free to involve your lawyer in the mediation process in whatever way may be appropriate in your circumstances. 

What is a Lawyer’s Role in Mediation?

There are a number of roles for lawyer participation prior to, during and after mediation:

Pre-mediation:

• Advise you about the mediation process.
• Prepare you for mediation and decide together on their level of participation.
• Selection of a mediator.

During mediation:

• Advisor-only: Lawyer is present or available by phone, but does not participate directly in joint mediation sessions.  Consultation takes place between the lawyer and yourself during breaks in the mediation process.
• Participant-Advisor:  Lawyer provides legal advice during joint mediation sessions on legal issues through an exchange of views with the other lawyer.
• Spokesperson:  Lawyer participates as a spokesperson on behalf of you as their client if you are not able to engage in the mediation process.
• Participation:  Cooperation with mediator and assistance in drafting of settlement agreement.

Post-mediation:

• Follow up settlement enforcement with you.

Who can attend the mediation?

The mediator considers a number of factors when considering who should be present during a mediation session. Those who are involved in the dispute and will be most affected by the outcome of any agreement should be present. Those parties who have authority to make decisions regarding the dispute and can settle on any agreement reached should be present. However, depending on the parties involved in the dispute, the mediator will also consider how to deal with a practical number of participants. If a dispute involves multiparty stakeholders, group size and representation issues will be discussed in advance and agreement reached on the most suitable approach before mediation begins.

1. The Mediator – will be present. When appropriate, a co-mediator may also attend.
2. The Parties – if mediation is to succeed, the parties involved in the dispute should all be present or have at least one person who is authorised to make decisions on the spot and is intimately familiar with all aspects of the dispute – this is usually the same person.
3. Lawyers are not required as mediation is not a legal process. However, if the parties want to be represented by lawyers, they may attend in the capacity of an advisor; a participant-advisor or a spokesperson if their client cannot be present or speak for themselves. It is preferred either both parties be represented or neither. In a situation where one party is legally represented but the other is not, the mediator may adapt the process appropriately.
4. A Supporter – Sometimes disputing parties may elect to have a person who can provide them with either emotional or technical support also present during the mediation. (e.g. these may include a friend, spouse/partner, family member, business associate, accountant, interpreter, consultant or other technical expert). Whilst a supporter can often be helpful, sometimes they can make matters worse. Keeping things simple is often the best approach.
5. Persons with authority to settle – Anyone representing a party to the dispute (e.g. a business or organisation), must have sufficient authority to reach agreement for that party (e.g. documentation authorizing them to settle on their behalf). For example, in cases where insurance is involved, there should be a representative from the insurance company with authority to agree to pay an appropriate amount.

Is mediation confidential?

Parties enter into a mediation agreement before mediation commences. This agreement contains a clause requiring the parties to keep confidential any discussions during mediation. The agreement also ensures that statements made during the mediation are “without prejudice” and cannot be used later in court.

What issues are suitable for mediation?

Most types of conflicts are suitable for mediation, depending on the parties involved. For example:

• property ownership disputes
• damage to property
• financial problems (e.g. with banking institutions)
• personal injury disputes
• deceased estate claims
• neighbourhood and community (e.g. dividing fences, noise, pets)
• landlord and tenants and housing disputes
• commercial and workplace
• management issues
• employee/employee
• employment and industrial disputes
• harassment claims
• disputes between traders/suppliers
• commercial disputes
• farming
• vehicle accident
• debt collection
• consumer/retail disputes
• gender orientated issues
• environmental
• racial issues
• small business (e.g. contracts, leases, estranged business partners dividing the business or assets)
• franchise systems (franchisor/franchisee)
• family disputes (including separation, divorce, child custody, property and financial agreements, defacto relationships, juvenile issues, parent/adolescent conflicts, problems at school, care of the elderly)

When is mediation not appropriate?

1. If the disputants have a history of violence, mutual intimidation or animosity. Where one party feels intimidated or intellectually overwhelmed by the other party, it may prove difficult to achieve a ‘meeting of the minds.’
2. If there is an imbalance of power, financial or social position amongst the disputants. However, if there is a power imbalance, this may be overcome by arranging for the more vulnerable party to have an advisor or representative present.
3. If the dispute involves a point of law, necessity for injunction or interpretation of a document. Legal precedents cannot be set in mediation because agreements reached do not establish which party is “right” or “wrong.” Mediation decisions are applicable only to the parties in a particular mediation.
4. If an agreement to establish a legal or public precedent exists between the disputants.
5. If a statutory time limitation expiry is imminent. If mediation is not successful and you choose to take legal action such as litigation, it is recommended you obtain legal advice on this issue.

Other situations where mediation may not be the best option:

• The case cannot be mediated unless all parties to a dispute agree to participate, so if one party refuses or is not competent for any reason, then other alternatives may need to be considered.
• If a party believes they are able to win a large verdict against a company with substantial financial backing or considerable insurance. Due to the practice of compromise in mediation processes, if a party is seeking a legal ‘jackpot’ as an outcome, then this may more likely be achieved through a jury trial.

How long does the mediation take?

This is dependent upon the complexity of the issues and the number of parties involved in the dispute. The Mediator should be able to give you an indication of a time estimate prior to your mediation based on your situation. As a guide, a preliminary conference will generally last about ½ to 1 hour. Mediation sessions for simple disputes often take between 4-6 hours depending on the complexity of the issues. Usually one session is all that is required, but additional sessions can be arranged if necessary. Typical mediation cases (e.g. small business disputes, consumer claims, neighbourhood issues and other civil issues) are usually resolved after a half day or at most, a full day of mediation.

Multi-party cases involving a number of stakeholders often last longer – as a guide you can add at least an hour of mediation time for each additional party. Major commercial disputes may last several days or more (e.g. those involving large amounts of money, complex contracts, or ending a partnership).

What if I don't trust the other party?

It is quite common for disputing parties not to trust each other, at least initially. Mediation processes are designed to overcome such challenges by opening the lines of communication between the parties and often quickly dispel misunderstandings.

The mediator assists the parties to express and listen to each party’s story in a positive way. Mediators skilfully navigate the process in a manner that helps the parties find common ground and focuses on the interests of the disputants. Shifting the attention to finding solutions that will work for all parties in the future, rather than on what has happened in the past is a powerful technique that helps overcome distrust and gets all parties working together for a mutually beneficial outcome. The Mediator’s experience in communication skills facilitates an environment where all parties can discuss issues respectfully in a safe environment. As communication improves, understanding and trust follow. When negative emotions begin to diminish and trust develops, co-operation improves and agreement can be reached.

Parties are expected to behave with good faith towards each other during the mediation process. If this does not happen, the mediator can terminate the mediation.

When is the best time to mediate?

Generally, the earlier the better, before matters escalate, relationships suffer and unnecessary expenses are incurred. Mediation can be arranged at any time during a dispute, regardless of what options are available or even if legal proceedings have commenced.

More people are realising that mediation does not have to be a ‘last resort’. In addition to resolving disputes, mediation processes can also break a deadlock in friendly discussions that can’t progress without third party assistance.

Other issues may need to be considered because not all parties may be ready for mediation simultaneously. When deciding if mediation is right it may be necessary to:

• consider and compare other options
• obtain more information about your/their situation
• consider commitments (work, health, family, financial)
• allow time to overcome fear, anger or other negative emotions.

Ask a mediator for advice regarding timing in your situation.

How do I involve the other party?

Many people are not comfortable suggesting mediation to the other party. This is sometimes due to the intense emotions involved, feelings of hostility, the need to ‘save face’, the risk of being overheard, and lack of confidence in describing mediation effectively. The Mediator can relieve you of any anxiety in this regard by contacting the other party on your behalf. The mediator can explain the process to them, describe the benefits of mediation, and answer any questions the other party may have. This no-pressure approach helps educate people about mediation so they understand there is a cost-effective, low-stress alternative to more formal proceedings.

Who pays for mediation?

Generally, all parties share the fees on an equal basis. Occasionally the disputants agree that one party will pay a higher proportion of the fee. It is preferable that each party pays some portion of the fee because we want all participants to 'take ownership' of the process and mediation services. Having a financial investment in the outcome sustains commitment to the process and increases the success rate.

Is the mediation legally binding?

When agreements are finalised in mediation, they are legally binding. The agreements are made in good faith and it is up to the parties to keep the agreement. In practice, mediated agreements have a high compliance rate and are rarely broken. This is primarily because mediated agreements have been reached voluntarily, only after the parties’ interests have been satisfied.  If your situation warrants it, you may want to seek legal advice about what is required before mediation commences. If it is a court-directed mediation, the agreement may be formalised as consent orders, which carry the full weight of the law. 

The parties tend to honour agreements because people generally keep their word; have decided on the resolution so have little motivation to sabotage their own proposition; have invested time, effort and money in the mediation process; are motivated to avoid further expenses; and want to move on with their lives.

How should I prepare for mediation?

Prior to mediation, it may be helpful for you to consider:

• what your rights and responsibilities are in relation to the dispute;
• how you are being affected on a daily basis as a result of the conflict; (stress, financial loss, etc)
• the main issues you would like to draw attention to;
• what outcome you would like to achieve;
• what actions you are prepared to take to make this possible;
• other options you have to resolve the dispute if mediation is not successful.

For the other party, consider:

• how you would feel in their position and think about what their expectations might be;
• what you think they might want in terms of an outcome;
• what settlement or agreement you think they might accept.

Other questions to think about are:

• What is this dispute really about?
• What do I want to achieve through mediation?
• What do the other parties want out of the mediation?
• What relevant facts or information do I have access to?
• What are the options for resolving this dispute, taking into account the needs of all parties?
• What is my best alternative to settling this at mediation? (Would I be happy with this?)
• What is my worst alternative to settling this at mediation? (Could I live with this?)

Your attitude towards mediation: Preparing mentally for mediation is one factor that can work in your favour towards a mutually beneficial outcome on the day. If you are well prepared, you will be able to resolve your dispute more competently and quickly, reducing the costs and time involved. Our tips are to:

• Be open-minded to how the dispute may be resolved.
• Come prepared to discuss the issues (even if they involve difficult conversations).
• Be ready to share your ideas and give some thought to various options that may bring about a solution. Brainstorming your ideas beforehand will help you feel empowered on the day.
• Be flexible by giving yourself plenty of room to negotiate. You will avoid feeling frustrated if you are willing to adjust your position during the process as new information comes to light. If you make an offer and won’t budge even if you learn something new during mediation that could mean a better solution is possible, you lose out and the best possible outcome for all parties may not come about.
• Be willing to give and take – you will be expecting the other party to do so, in order for your needs to be met. By avoiding ultimatums, you will open up the opportunity for creative solutions and won’t paint yourself into a corner you can’t get out of.
• Bring important documents with you so you can refer to any points quickly.
• Show respect for the other party and the mediator by observing the rules when you communicate.

For more information on communicating effectively and preparing for mediation, we recommend you read the practical information provided on our Communications Strategies and Resources pages.  We provide free articles on a variety of communication topics including listening skills and preparing for difficult conversations.

What are the alternatives to Mediation?

• Do nothing.
• Continue the conflict/dispute.
• Seek help from friends or family in resolving the dispute.
• Resolve the issues yourself, without professional assistance.
• Seek another alternative dispute resolution process such as arbitration (a less formal legal process).
• Ask lawyers to negotiate an agreement on your behalf.
• If available, seek assistance from government departments or agencies, industry bodies or organisations relevant to your situation.
• Commence legal action/court proceedings.

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If you have further questions, or require more information and advice on how we may be of assistance in your particular situation, we invite you to contact us directly on 1300 36 22 33.