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What is mediation?
At mediation, the people involved in a dispute come together with the help of a neutral person called a ‘mediator’ to try to resolve the dispute. The mediator helps people talk about the problem to find areas of agreement and common ground, to understand the other person’s needs and perspective and to find and discuss possible solutions to the problem. A mediator cannot make a decision to resolve the problem, cannot take sides and cannot give any legal advice.
What happens at mediation?
Usually, the mediation begins with a “round table” conference attended by each of the parties to the dispute, their solicitor and their barrister.
The mediator will usually open the mediation by explaining the rules of the mediation and his or her role as the mediator.
The Plaintiff’s barrister will then usually give a short description of the Plaintiff’s position and may put an opening offer.
The Defendant’s barrister will then give a short description of the Defendant’s position.
You can speak if you wish but you do not have to, and most people choose not to. If you do speak, you must bear in mind that this is an opportunity to resolve the dispute, usually by each party compromising and moving from their positions. It is not about trying to convince the other party of your point of view. If you wish to speak, then please let us know and provide us with a written draft of what you would like to say.
After the opening session, the parties and their representatives will then usually go into their own “break out” room and the mediator will visit each of them from time to time and will convey offers to the other party, usually in the presence of one or more of the legal representatives.
Is mediation confidential?
Mediation is confidential, which means that what is said during mediation cannot usually be used outside the mediation. There are some exceptions, especially if the mediator hears something that affects the safety of someone else, like a child.
You should also be aware that if you give information to the other party during a mediation, although they cannot give evidence about what you said during the mediation (as this is confidential), there is nothing to stop them using this information if your matter goes to court later and they can find the evidence in another way.
Agreements reached at mediation are also usually confidential, unless the agreement states otherwise.
What am I required to do at mediation?
You are required to mediate “in good faith”. This means that you must:
- Disclose all relevant information;
- Approach negotiation with an open mind;
- Be in a position to explain the rationale behind any offers made;
- Respond to offers in a timely manner;
- Co-operate in the identification and isolation of issues;
- Make appropriate concessions; and
- Keep everything that occurs at mediation confidential.
How much does mediation cost?
A court-annexed mediation is conducted by a Registrar of the Court who acts as the mediator. Court-annexed mediation is free but available dates for court-annexed mediation are usually at least a month or two in advance.
A private mediation is conducted by a private mediator who will charge fees for the mediation. A mediator’s fees range from about $3,500 plus GST upwards for a day. Unless otherwise agreed by the parties, the cost of the mediation (including the mediator’s fees and the cost of any rooms required for mediation) is ordinarily paid by the estate. Private mediation can usually be held sooner than a court-annexed mediation.
How long does mediation take?
Court-annexed mediation can be allocated for half a day or a full day.
Private mediation usually takes a day.
Can I bring a support person?
You can usually bring a support person to the mediation but we must advise the mediator and the other party of the person you wish to bring to the mediation. It is best not to bring anyone that will cause difficulties for the other party, as the objective of mediation is to try to resolve your dispute. Your support person will be required to sign a confidentiality agreement, before the mediation.
What else should i bring to the mediation?
Apart from any relevant documents, you should bring food, water, medication and anything else you would normally require during the day.
Questions?
If you have any questions about mediation, please let us know.
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Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.
