"HIC has engaged Nina to conduct high level mediations, and has found her practical, quiet approach achieves excellent results and that, most importantly, those results last."

Julia Burns
Manager, People and Performance
HIC

 

What is Mediation?

Many people now choose mediation as an alternative to litigation or arbitration.  It is estimated that over 250,000 mediations are undertaken in Australia every year.

Mediation is a fast, low cost process in which the parties to a dispute, with the assistance of the Mediator, identify disputed issues, develop options, consider alternatives and endeavour to reach an agreement. 

A Mediator will assist the parties to have a constructive conversation about the issues in dispute.  Mediation is a confidential process.  An agreement between the parties typically renders  the following confidential (as far as the law allows):

  • all discussions during the mediation

  • all documents prepared for the mediation

  • all discussions with the mediator.

The terms of the settlement may also be confidential.

Mediation is usually a voluntary process which means that the parties enter into the mediation voluntarily and can walk away at any time if they are not satisfied with the process.  Some mediations are mandatory.  Ask us if you are not sure if your mediation is voluntary or mandatory.

Mediation is conducted without prejudice to any legal rights which the parties may have.  If mediation is unsuccessful other means of dispute resolution may be used or continued.

Agreements reached at mediation are usually final and binding contractual agreements.


THE MEDIATOR

A mediator is an independent, neutral person with expertise in dispute resolution. The mediator helps the parties to negotiate more effectively.

Nina Harding is a LEADR Advanced Mediator with over a decade’s experience as a Dispute Resolution Expert. Nina has resolved a broad variety of business disputes. See Our Expertise for details.


Workplace Disputes

Mediation is a good process for resolving workplace disputes because:

q mediation is confidential

q fast and low cost

q mediation can deal with the intangible issues such as; perceptions, management style or expectations, relationship issues, stress and the substantive issues

q Mediation has a positive and future focus

q Mediation can offer face saving

q Mediation gives people an opportunity to understand the impact of their actions and perhaps change their behaviour

A short audio clip of a man talking about the impact of a workplace dispute.

CASE STUDY

Two senior executives from the same organisation have stopped communicating with one another. Nina was asked by the HR Manager to resolve the dispute which was having an impact on the rest of the department and distracting people from their work. The organisation was also concerned about corporate governance issues which had been neglected. The mediator spoke to the two managers and the HR manager to discuss the goals of the mediation and their commitment. (If there was no commitment at this stage the mediation would not proceed.) The mediator encouraged the managers to do some simple preparation prior to the mediation. The mediation consisted of two meetings of approximately 3 hours per session. The mediator may, with the input of the parties, identify an agenda for the discussion.


Commercial / Business Disputes

Mediation is an attractive option for business people because it is confidential, fast and can get businesses back on track quickly.  Mediation can also provide a forum for business people to re-negotiate problematic agreements, terminate their relationships, negotiate a mutually satisfactory exit strategy and deal with difficult issues such as allegations of fraud, negligence and defamation. 

Mediation can give the parties the opportunity to resolve problems before they escalate further.  Mediation deals equally well with intangible issues such as relationship and perceptions and also very tangible issues such as complex technical and legal issues.

Please see Our Expertise for examples of our work. 


Community / Environmental Disputes

We have mediated numerous disputes involving large groups of complainants, including community, environmental and action groups.  Some of these disputes have involved a change in land use, development proposals by the government or private sector, transport changes, health concerns over industrial usage, environmental and other issues of concern to local groups or communities. 

These large scale or multi-party disputes require a strong project management approach to ensure that issues are discussed and identified, options developed and evaluated and agreements reached within an agreed time frame.

For more information about large scale or multi-party disputes please Contact Us.

Please also see our Community Engagement experience. 
 

THE COST OF MEDIATION

Before the mediation the parties decide on how the costs of the mediation are to be shared.

Usually the costs of the mediation are shared equally by the parties.  The costs of the mediation include the fees of the mediator and any room hire costs and other associated expenses. 


HOW LONG WILL MEDIATION TAKE ?

It all depends on the complexity of the issues and the number of parties involved.  An experienced mediator should be able to give you an estimate of the time required prior to the mediation.

Commercial or business disputes can take between 4 – 6 hours depending on the complexity of the dispute.  A more complex commercial dispute with several parties may take several days of mediation.


HOW DOES MEDIATION WORK ?

The mediator will usually meet with each of the parties prior to the mediation to discuss the process, preparation for the mediation, the role of the mediator, etc.

The mediation is held in a neutral venue that suits the needs of the parties. The mediator will open the mediation by explaining the process and the essential features of mediation.

The mediator will then ask the parties to explain the issues from their perspective. The mediator will assist the parties to identify and explore the most important issues in dispute. The mediator may, with the input of the parties, identify an agenda for the discussion.

The parties will then discuss the key issues in some depth, clarify misunderstandings and begin to identify options that meet the needs of the parties.

The mediator may meet with the parties separately to discuss any issues which were not raised in the previous joint session, discuss options and alternatives.  The discussions with the mediator in private session are confidential (as far as the law allows) unless the party gives the mediator permission to disclose what they have raised with the mediator.

The mediator will assist the parties to generate options which meet their needs (as far as possible). When the parties reach an agreement the terms of the agreement are usually drafted into an agreement at the mediation.


BENEFITS OF MEDIATION

Mediation[1]:

  • puts control of the resolution of the dispute into the hands of those best equipped to find the most appropriate solution in view of the parties' individual needs and interests;

  • helps parties to negotiate without fear of showing weakness;

  • provides an opportunity for parties to have their say, to tell others exactly how they see the problem in a confidential, non-threatening atmosphere without prejudice to any rights;

  • helps disputing parties understand how the others see and feel about the problem;

  • enables business relationships to be maintained and even enhanced by encouraging co-operative problem solving;

  • enables identification and exploration of all issues, including those which may not be revealed in arbitration or litigation because of the application of the rules of evidence;

  • helps disputing parties to regain the perspective that can so easily be lost in arbitration and litigation;

  • provides the opportunity for an unlimited range of creative and final solutions unlike the limited remedies which can be awarded by an arbitrator or a judge;

  • can provide procedural and psychological as well as substantive satisfaction;

  • is confidential thereby avoiding adverse publicity or media attention and the need for any confidential or commercially sensitive information or trade secrets to be publicly disclosed;

  • is usually significantly cheaper and quicker than arbitration or litigation and can be arranged to suit the convenience of the parties;

  • focuses on the future rather than on the rights and wrongs of the past.


IS THIS REALLY A DISPUTE ?

If you are concerned that an issue will grow into a dispute we are happy to provide early advice on how to avoid the escalation of a dispute, how to negotiate an effective outcome and how to identify potential risk to an organisation or business. Often a proactive approach can resolve an issue before it escalates into a dispute.  Early action through preventive steps can often protect business relationships and avoid costly mistakes.

[1] From What is Mediation, Rural Assistance Authority.


MEDIATION TRAINING

Nina Harding conducts a 5 day Mediation Training Workshop for LEADR (Australia’s leading membership organisation for mediators). The LEADR course meets Law Society requirements for an approved course. The LEADR course is an excellent introduction to mediation. For more information please see www.leadr.com.au 
 

"Nina Harding and Dr Jane Elix did an excellent job of bringing together five disparate UNSW student organisations to recognise common interests and plan for a vibrant student experience under VSU. Jane and Nina successfully facilitated a complex series of negotiations and provided an effective framework for planning significant organisational change."

Lyndell Carter
Executive Officer, Office of the Deputy Vice-Chancellor(Resources)
University of New South Wales (2006)