Mediation is a 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. More than 250,000 mediations are undertaken in Australia every year. 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. 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.
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.
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 Contact us
Benefits of Mediation [From; What is Mediation, Rural Assistance Authority]:
- 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.
When Is Something 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.
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 more than 20years of experience as a Dispute Resolution Expert. Nina has resolved a broad variety of business disputes.
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 start 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 have not been raised, discuss options and alternatives. The discussions with the mediator in private 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 a legally binding agreement at the mediation.
The Cost of Mediation Before the mediation the parties decide on how the costs of the mediation are to be shared. Usually the costs are shared equally by the parties. The costs 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 usually take between 4 – 8 hours depending on the complexity of the dispute. A more complex commercial dispute with several parties may take several days of mediation.