Mediation Survival Guide

What is Mediation?

Mediation is a formalised negotiation process for the purpose of Alternate Dispute Resolution (ADR). The process is overseen by an independent and neutral individual, referred to as the mediator, whose job is to assist the parties in identifying and evaluating viable options, with the end goal being to negotiate an amendable agreement to resolve the dispute in question. This process is an alternative to having a judge hand down a judgment on the matter to the parties.

When to use Mediation?

No one type of case is necessarily more or less suitable for mediation. All commercial and civil disputes, regardless of complexity, are technically eligible to engage in mediation.

One of the main reasons for the use of mediation, apart from the willingness of parties to participate in it, is the possibility that legal proceedings before a judge may not end the dispute regardless of a judgement being provided. That is, the powers of a court and the types of judgments able to be made are not unlimited, and whilst a judgment may resolve legal issues, practical and personal issues may remain outstanding. Likewise, the desire of parties to preserve the relationship between themselves is another positive reason as to why mediation may be pursued. Often it may be that the negotiated outcome between parties ends up better suiting their needs and interests than a judgement from the Court.

The Process Involved

Prior to the commencement of a mediation, the parties will often submit position papers, or some other statement of the relevant issues, to the mediator. The mediator will decide on the best course of action to facilitate communication between the parties, giving consideration to suggestions from the parties where possible. This can involve having the parties in the same room, or separate rooms, or allowing for break-out spaces where parties can discuss individually after conducting a group discussion.  

The structure of the mediation process is not rigid, but rather tailored to the circumstances of each individual matter. The point of the process is for the parties to reach their own resolution, un-coerced by the mediator. The mediator often encourages parties to consider the consequences of proposed solutions to the dispute, including through conversation with the parties; jointly or severally. The main point is to offer different perspectives as a neutral third party in order to hasten a conclusion to the dispute prior to the advancement of legal proceedings.

Benefits of Mediation

In comparison to a trial in front of a judge, mediation offers many benefits to parties interested in reaching a resolution to their dispute, including:

1. a quicker process;
2. the ability to avoid the costs associated with going to trial, including the risk of adverse costs orders;
3. more control over type of resolution reached; and
4. confidentiality as to the contents of the mediation, including if mediation is unsuccessful, such that the contents and particulars of any offers are not disclosed to the court in the course of a hearing.

How do you prepare for a Mediation?

There are a number of ways in which parties can prepare for a mediation. Such ways include considering:

1. the most pressing issues in dispute;
2. the interests at stake for each party, and what each party wishes to preserve or pursue within the process of resolving the dispute;
3. engaging a legal representative for assistance (it is not always necessary, considering mediation is a voluntary process), which may be helpful for reviewing settlement agreements prior to signing them;
4. the likely outcomes to occur should the matter proceed to trial, with particular regard to the monetary value of damages claimed and the ability the Court has to award these;
5. the costs that have been incurred, are likely to be incurred and what part of these could be recovered; and
6. what the other side is after, and how or whether this can be accommodated with an offer of settlement.

Possible Outcomes of Mediation

The case may be settled in full, in part, or the parties might simply not reach an agreement. If either an agreement in full or part is reached, the details of it will be recorded in a deed or other formal documents to be signed by all parties. If there is a full resolution of the dispute, the parties will formally issue the Court a notice of discontinuance, or otherwise inform the Court that the matter has been resolved.

If you have any questions or wish to discuss your circumstances with a lawyer, please contact the BAL Lawyers Litigation and Dispute Resolution team on 02 6274 0999.