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Is it for me?
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Some
factors about your dispute may indicate that it is particularly
suited to mediation, such as:
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A
willingness to participate in mediation;
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The
possibility that a judge’s decision will not end the dispute;
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The
need for parties to find a way to preserve their relationship;
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The
existence of non-monetary factors; and
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The
potential for a negotiated outcome that better suits the needs and
interests of the parties than a judge’s decision.
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Why
mediate?
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Mediation
offers many benefits over a trial by a judge, including:
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Time:
ordinarily a dispute can be resolved more quickly through mediation
than through a trial.
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Cost:
if a dispute can be resolved through mediation, the costs of
preparing and running a trial can be avoided. Additionally, after a
trial the unsuccessful party may be ordered to pay the legal costs
of the successful party.
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Flexibility:
mediation offers parties more control over the outcome. A mediation
process which is customized to your needs can be arranged with the
mediator.
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Stress:
mediation is less formal and less intimidating than appearing in
court.
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Confidentiality:
mediation is private. The judge is not informed of the contents of
the mediation. It is also usually unable to be used against a party
if the case goes to trial. (The Court recommends you discuss
mediation confidentiality with your lawyer).
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Satisfaction:
because the parties decide and agree on the outcome of their dispute
they are more likely to be satisfied with the result and to comply
with what has been agreed.
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Finality:
settlement agreements can usually only be modified with the
agreement of all parties.
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Who
attends mediation?
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The
parties are in ultimate control of any decision to resolve their
dispute. It is essential that people attend the mediation with
sufficient knowledge of the relevant issues in dispute and the
authority to make decisions about how it might settle after the
mediation. If attending on behalf of an organization the Court
requires the attendee be an authorized officer who is able to make a
decision about how the dispute might be settled and to enter into an
agreement on behalf of the organization.
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If you are not legally represented you may ask to bring someone for
support.
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How
do I prepare for mediation?
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You
can improve the quality of your mediation by considering:
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What
issues are in dispute, including the facts and sources of conflict;
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What
is important to you in any resolution of your dispute. The interests
that you wish to preserve or pursue may be different to an outcome
sought through a trial;
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How
best to communicate this information, both to the mediator and the
other party;
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What
you would say at the start of the mediation, to assist in resolving
the dispute;
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What
the other party’s aspirations might be and how these might be
accommodated in any offer of settlement;
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Possible
contents of an offer and methods of communication;
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What
costs have already been incurred, are likely to be incurred and what
part of these might be recovered; and
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The
possible outcomes if the matter were to proceed to a trial,
including the dollar value of any damages claimed and any limits on
the Court to award these.
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What
happens at mediation?
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Before commencing mediation the mediator will consider the best
process for mediating your dispute, taking into account suggestions
from all parties where possible. The mediation will commence with an
explanation of the process, followed by a discussion about the
background of the matter and issues in dispute.
The mediation
itself is flexible and can be tailored to the circumstances.
Mediators may assist negotiations by asking questions, encouraging
open discussion, offering different perspectives and expressing
issues in alternative ways. Parties may be encouraged to identify
and test the consequences of potential solutions. It is common for
the mediator to meet with the parties jointly and separately and
further mediation sessions can be scheduled if necessary.
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What
are the possible outcomes of mediation?
The case may be settled in full or in part or parties may not be
able to reach agreement.
If agreement is reached about part
or all of the dispute, the details of that agreement will usually be
recorded and signed by all parties before the end of mediation. If
the dispute is settled in full the mediator will notify the judge
that the matter has settled. The mediator will not provide the judge
with any details of the mediation discussions or the terms of any
agreement the parties reached without the permission of the parties.
Once the agreement is finalized the parties will usually formally
notify the Court that the case is not going to proceed and the case
will be closed.
If the matter is not fully settled there may
be discussion about what needs to be done to prepare for trial and
the file will return to the judge. The mediator will notify the
judge of the outcome but not the content of the mediation. Even when
a matter does not settle clarification of the issues often occurs.
Mediating a dispute does not mean there will be a delay in it being
heard by a judge.
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How much does mediation cost?
All fees that apply to mediation is ordinarily paid by the
applicants, unless otherwise ordered. In some circumstances fees can
be exempted or deferred.
Parties will usually incur the legal
costs of their own lawyers preparing for and attending mediation.
ITO Mediate can arrange and pay for the cost of a translator but
such costs are shared by both parties involved.
ITO
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