Mediation: The what, why, who and how

Mediation is a process by which two or more people mutually agree to meet with an independent third party (a mediator) to discuss and negotiate options and potential solutions to their conflict.

What is mediation?
Mediation is a process by which two or more people mutually agree to meet with an independent third party (a mediator) to discuss and negotiate options and potential solutions to their conflict. The mediator is often a trained and accredited expert in the subject matter of the dispute, and has the skills and industry knowledge to assist the people to reach a satisfactory agreement with a view to ultimately avoiding the courtroom.

A mediation is confidential, informal and takes place in a mutually agreed venue, usually with each party’s solicitors present. The parties must agree on the engagement of a particular mediator ahead of time, and most often than not will share the mediator’s costs. If the parties agree on a settlement at the mediation, the parties’ solicitors together with the assistance of the mediator will draft and sign legally-binding terms of settlement on the spot reflecting the agreement reached by the parties.

Why mediate?
One of the most compelling reasons to mediate is to avoid the courtroom. Legal proceedings can be costly, lengthy, and can take any number of months to be determined. By contrast, and very often, parties can reach a customised agreement on their particular dispute on the day of their mediation, thereby walking away with certainty and a resolution to their conflict.

Mediation is an empowering process, because it facilitates people to find and agree on their own solutions (rather than be at the mercy of a judge in Court). It is an informal process meaning that parties are not bound by rules of evidence, and are not obliged to file any documents. The people can come to their own arrangements as to a time and venue for the mediation, which provides flexibility. And finally, the parties can discuss anything during the course of the mediation without any fear that their comments could later be used in court, as all mediation discussions are strictly confidential.

Who should consider a mediation?
People embroiled in legal proceedings, or gridlocked in conflict talks, who are genuinely motivated to resolve the dispute should consider the option of a mediation. In some circumstances, a dispute may not warrant legal proceedings, but could instead be a good candidate for mediation as a more time-efficient and cost-effective alternative.

In situations where the people in a dispute necessarily have an ongoing professional relationship (for example a lessor and lessee, an employer and employee, or business partners), a mediation may prove to be particularly valuable as it seeks to rebuild the relationship between the parties, to improve communication and to reduce future conflicts.

To give yourself the best possible chance of settling your dispute at mediation, you should realistically be prepared to actively participate in negotiations and to keep an open mind as to the types of solutions that may be appropriate.

How is a mediation run?
Depending on the complexity of the dispute and the number of parties involved, a mediation may take as little as two to three hours, or anywhere up to a whole day. If by the end of the day the parties are unable to reach a compromise or agreement to their dispute, the mediator may terminate the mediation in which case the parties continue with any legal proceedings which may be on foot. More than one attempt at mediation can be made, if consented by the parties.

Quite often, the parties together with their solicitors will initially all meet in the same room for an introductory discussion with the mediator. The mediator will then usually invite each party to move into a separate room where they can speak privately with their solicitor/s. The mediator will then go from room to room to meet privately with each party, to discuss any issues and to consider possible options for a resolution. The mediator will act as the “go-between” and will not disclose what is privately discussed with each party.

If the parties ultimately reach a resolution, a legally-binding settlement agreement reflecting the terms agreed on by the parties will be prepared and signed that same day before the parties leave. Please contact Steve Dangerfield, Angela Catanzariti or Lynda Lim of our litigation team for more information or a complimentary and frank consultation on how mediation could be an option for you.

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