What is Mediation

What is mediation

Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the Mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach agreement.  The Mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of the mediation to give the best chance of resolution being achieved.

Unlike Court based resolution – the parties have the ability to make a joint decision that suits the parties and fits with their interests and needs. By this they gain the advantage of being in control of the decision / outcome of the dispute.

Importantly, mediation is confidential and private in nature and any discussions / information is treated in confidence and is unable to be used by any party should the dispute not be resolved – this encourages frank and open discussion without fear or favour. An agreement to confidentiality is sought from the parties prior to the mediation commencing.

Benefits of mediation compared with Court / Tribunal based resolution:

A successful mediation, will lead to a resolution of a dispute that results in:

  • Mutually beneficial outcomes.
  • Recognition of Interests and is needs focused.
  • Outcomes which are significantly more cost effective.
  • Time and convenience savings.
  • All parties benefit from having an equal and fair input into the resolution of the dispute and, in some respects, being able to have “their say” (respectfully and thoughtfully).
  • An agreement that is a legally binding outcome by way of the agreement being reduced into writing.

How does it work

If you have a dispute with someone that you would like to resolve, then you may follow the following process:

For self-represented parties:

Step 1

Get in touch with SDRC and discuss options for appointment of a Mediator (from one of our panelists and appropriate to the type of dispute that you have) – either by telephone (07 5532 1988) or website enquiry

Step 2

Request SDRC to send an invitation to the other party/parties to let us assist with the resolution of the dispute and providing them with information as to the benefits of participating in mediation as a form of dispute resolution.

Step 3

Should the invitation to mediate be accepted, then each party will be asked to attend upon an initial meeting (“intake session”) with the appointed Mediator to discuss (privately and confidentially) the dispute.

Step 4

Upon completion of the intake sessions, a joint meeting is convened where all parties attend (in person or virtually), where the accredited and trained Mediator will use their knowledge, skills and tools, to take you through the mediation process to reach a mutually beneficial and future focused agreement.

Step 5

The Mediator will then assist the parties to write up an agreement between them resolving all, or part of, the dispute. This written agreement can be considered a binding agreement or, in certain circumstances (such as family disputes) used as a template for formal Court Orders.

For legally represented parties:

Step 1

 If you are interested in having your mediation held at SDRC, forward our contact details onto your legal team.

Step 2

Have your legal team contact our office directly to obtain all information necessary to your dispute and availability.

What is the Mediator’s role

The Mediator’s role is to facilitate / manage the meeting, assisting the parties to communicate with one another, encouraging discussion and discourse, assist to isolate causes and issues of past conflicts and to assist the parties find common ground. This is achieved by facilitating negotiations (through respectful communication) enabling the parties to make mutually informed changes and agreements that prevent conflict in the future and otherwise improve the parties relationship with mutual gain in mind.

The Mediator will do this by managing the flow of communication and assisting the parties to listen to each other and hear things from each of the other’s perspective – respectfully and with candour.

The Mediator is not a decision maker and does not provide the parties with legal advice (whether together or separately) – that is for separate legal representation (if required).

All going well, the parties will have a mutually rewarding negotiated settlement and the Mediator will assist them to reduce that into writing.

What if there is no agreement at the end of a mediation session

If there is no agreement after the parties have been part of a mediation session, then the parties have still benefited by the process as they will have had the opportunity to put their side on the table and listen / consider the other person’s side. That may, upon reflection later, lead to a better understanding of the dispute and offer ways in which the parties can gain from an agreement.  Also, ending a mediation session does not end the ability to further mediate a dispute if the parties wish to attempt to resolve an ongoing dispute at a later time.  This is different to a Court or Tribunal outcome where, other than expensive appeal rights, the matter is “finalised” – usually, and in our experience, not in the interests or to the satisfaction of all parties.

How can you prepare for a mediation

You should prepare for the mediation by taking the following steps and considerations:

  • Ensure you know the case thoroughly, including reading all the documents that have been exchanged between the parties or filed by all parties if the matter has been commenced by Court process.
  • Think about what the result might be if the case is heard and determined by a Judge – that is, consider your best outcome and worst outcomes to a negotiated settlement.
  • Think about how you can negotiate to settle the case and what kinds of compromises you may wish to make.
  • Consider your legal expenses and whether you can afford (expense and time) to continue to a Court hearing of the matter bearing in mind that you may have to pay the other party’s legal expenses if a Judge hears the case and you’re not successful.