FAQS

What is mediation?

Mediation is a voluntary process where by a specialist and impartial third person assists the parties to reach an amicable settlement in a dispute, taking into account all parties needs and reaching an agreement that is acceptable to all sides.

Throughout the process, each party is offered the opportunity to present their case. The mediator’s role isn’t to offer advice or make decisions but rather to assist the parties in exploring the inherent strengths and weaknesses in each side’s case and identify possible solutions, assisting to reach a settlement agreement. The mediator neither decides which side is right or wrong nor has the authority to impose a settlement. The mediator is skilled in unlocking negotiations that have become deadlocked and in keeping everyone focused on finding a solution.

Why consider mediation? What are the advantages of mediation?

  • The settlement terms can be kept confidential and private.
  • Parties are able to eschew the risk of losing the litigation.
  • Parties are able to avoid suffering anxiety and disturbances to normal life caused by adversarial litigation in court.
  • Confrontation is avoided as an amicable settlement can be achieved by mediation.
  • An early settlement may be reached during mediation saving the parties time and money not having to contest matters in court.
  • Parties can make their own decisions and reach agreements together.
  • Mediation can result in terms of settlement of greater flexibility and go beyond legal remedies that the court is empowered to grant. Solutions developed by the parties can be unique to the dispute and ones the court cannot provide.
  • Unlike a structured, drawn out court case, parties can uncover undisclosed issues and seek mediation for these issues.
  • Mediation is conducted in a safe, relaxed manner under which parties are more likely to be open to compromise and communication.
  • Family mediation may improve the parties continuing relationship as parents.

How much will mediation cost?

Commercial mediation costs $5000 + GST per day or $500 + GST per hour Family mediation starts from $220 per hour +GST and is based on the nature of the case. It’s assessed on a case by case basis. 

How long does mediation take?

Each mediation is different and depends on a number of factors:

  • the complexity and number of issues the parties need to settle
  • the degree of the parties cooperation and readiness to participate in the mediation sessions.

If the issues are not complex and the process goes smoothly, a full day session may be enough or 2 to 3 mediation sessions lasting only a few hours may suffice.

What cases are suitable for mediation and what are not?

Not every case may be suitable for mediation, I assess every case in an initial consultation and decide on a course of action. In a family dispute, where one or more of the parties are in a severely disturbed emotional or psychological state, such that they cannot represent themselves or focus on the needs of their children, is not suitable for mediation.

How is mediation different from arbitration and litigation?

Litigation

  • the parties may commence proceedings in the court in the absence of an arbitration agreement or other consensual means of dispute resolution.
  • Parties present their case to the court for its determination. The judge acts as an umpire and after considering the evidence and hearing the arguments from the parties makes decisions. The losing party will be ordered to pay costs to the winning party. The amount of costs depend on factors such as complexity of the case, work required for preparation of hearing and the length of the hearing.

Arbitration

  • Is a legal process of resolutions convening outside the courts. For an arbitration to take place, the disputing parties must agree to take their dispute to arbitration.
  • Arbitration awards are final and binding and can only be challenged in very exceptional circumstances.
  • Arbitration is a form of binding dispute resolution, equivilant to litigation in the courts and entirely distinct from the various forms of non binding dispute resolution such as negotiation, mediation or non-binding determinations by experts.

How can the parties be sure that mediation will produce a fair result?

The work of the mediator is not to make a decision on behalf of the parties. The mediator assists the parties in reaching possible solutions to the dispute, enabling the parties to find the path to dispute resolution that is mutually beneficial. Unless both parties completely agree, there will be no final resolution and nobody can force them to sign any agreement.

In a mediation session, the mediator will help the parties to:

  • Discuss and decide what matters are in a dispute
  • Explore settlement options and assess suitable solutions
  • Decide on each party’s real needs and interests.
  • Draw up the settlement agreement in detail, setting out how the parties have agreed to resove each matter in dispute.

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

You don’t need a lawyer to participate in mediation,  however before an agreement is reached in mediation, some parties may seek independent legal advice. Though I am a qualified lawyer, as rule during mediation I refrain from offering legal advice to avoid a conflict of interest.

Should you need legal advice, it is suggested you make arrangements in advance. Mediation is an independent third party and remains impartial and neutral. No legal advice should be expected from a mediator.

What do I need to prepare before mediation?

  • Consider in advance various acceptable settlement options
  • Seek prior legal advice if necessary
  • Familiarize yourself with the facts of the case
  • Arrange to have individuals whose decisions are necessary for resolution present for the entire mediation.

Do I have to go to mediation?

No- the mediation process is entirely voluntary, should the dispute be subject to Court proceedings, the Court will take into account all relevant circumstances, including whether a party has unreasonably refused to take part in mediation.

Confidentiality

A person must not disclose a mediation communication (anything said and done in mediation) except under specified circumstances, with the consent of all parties and the mediator or where there are reasonable grounds to believe the disclosure is necessary to prevent danger of injure to a person or of serious harm to the well being of a child or with the leave of the court.

Mediation is considered to be a private and confidential process, firstly the process must remain confidential at all times in that no third party is to be privy to the proceedings other than the parties and mediator. Secondly, under no circumstance should any matters discussed in private sessions be disclosed to the other party by the mediator without permission.

 
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