Understanding Mediation

Mediation is a process where an independent person, known as a Mediator is emerged and assists the parties to identify and review options with the goal to resolve the dispute between parties without litigation.

There are three forms of Mediation

1.        Legislative and quasi legislative schemes

2.        Mediation by Court Order

3.        Quasi- compulsory schemes

Legislative and quasi legislative schemes

For example, sometimes and in fact more than often mediation is a requirement before you file proceedings in a Court such as the Family Law Court.   

The Court may order Mediation

The Court has the power to refer matters to mediation, either with or without parties consent.

Quasi-compulsory schemes

In some Jurisdictions, parties can be penalised by a Court or tribunal, if Mediation is not undertaken by parties.

The Court will often recommend Mediation to parties as although matters do require discussion not all matters require the need to be litigated. The cost of Legal fees is increasing as well as the back logs in the Court system. Therefore, the push for Mediation has become more apparent since 2020, and the Court have introduced Quasi-compulsory schemes to promote the use of Mediation. For example, in Waterhouse v Perkins (2001) the Court ruled that it was feasible that, if a party did not act in good faith, one sanction that might apply was contempt of Court, therefore mediation was imposed under section 110L of the Supreme Court Act 1970 (NSW).

Why choose Mediation?

Litigation is rarely cost effective and, in most cases, including Commercial, emotions run high. Mediation is a form of negotiation therefore the parties’ approach the matter to work out a solution acceptable to them.

Mediation can also present outcomes that may not be as achievable in the Court process. Due to the negotiating nature of Mediation it allows all avenues to be explored and settlement can reach a point whereby all parties are content with the outcome.

Disadvantages of Mediation

In Family Law, Mediation may not be as effective especially where there has been domestic violence in the relationship. Trying to negotiate with an ex-partner who was physically and emotionally abusive can be very overwhelming for many people. Mediation is a very direct line of communication with the other side, and this can present further problems for parties who struggle to communicate without conflict.

The Mediation process has adapted and inserted various procedures for when parties are not able to communicate with one another. This is known as a shuttle Mediation; therefore, parties do not sit in the same room with one another and correspond with the Mediator individually, who then acts as a messenger between the parties. Furthermore, Lawyers are often present during the Mediation as well as support persons to assist parties.

Mediation is a problem-solving process and requires three things:

1.        A willingness on the part of all relevant parties to work together to resolve the problem or deal with the situation

2.        Availability of a trusted “neutral” with sufficient knowledge and skill to manage difficult conversations

3.        An agreement on procedural ground rules (confidentiality, timetable, agenda).

 The process is a great tool to resolve disputes across many areas of Law. Litigating the matter is often far too extreme and lengthy. Therefore, Mediation allows for a formal discussion to take place with an independent individual who can suggest solutions and hopefully resolve the matter between parties.

Mediation v Conciliation

Mediation is a process of resolving issues between parties where a third party assists the negotiation. However, Conciliation is an alternate dispute resolution method whereby an expert is appointed to assist settle the dispute between parties.

The third party in a Mediation, acts as a facilitator whereas a third party in Conciliation acts as a facilitator, evaluator and intervener.

A Mediation setting Is less formal; however, an agreement is executed is enforceable by Law. Conciliation is a more formal way to negotiate due to the fact the third party is an expert, and their role is to provide solutions they are often able to negotiate of the contract or similar. The settlement agreement between parties is binding upon parties.

Our Principal Kathryn is a is a nationally accredited Mediator and offers mediation in family, workplace and small business disputes.