Mediation is an informal process for helping people who have a disagreement, however can work to sort it out for themselves without going to court. The mediator is a neutral third person in the process who encourages those in the dispute to talk to each other about the issues, and work towards mutual resolutions.
What is mediation?
Mediation is a process by which a neutral third party called a mediator helps people in conflict negotiate a mutually acceptable agreement. The parties to the mediation control the outcome.
A mediator facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem solving techniques to enable the parties to reach their own agreement.
Unlike court or arbitration, no one imposes a solution on a party. If all of the parties do not agree to the result, the dispute remains unresolved.
Mediation gives parties much more control over the way their dispute or difference is dealt with and over the outcome. If negotiations have so far failed, mediation provides an alternative to pursuing litigation or other more formal processes. The scope for solutions is usually greater than the remedies available in courts and tribunals, or even in prolonged negotiation.
What are the advantages to Mediation?
- Affordable – Mediation costs considerably less than litigation.
- Efficient – The mediation process can usually settle a dispute within a few sessions. Most mediation’s conclude or settle within thirty days from initiating the process.
- Effective – Mediation statistically settles over 85% of initiated disputes.
- Informal -The process of Mediation is flexible and informal. It is not necessary to have legal representation during the mediation process. However, some individuals do feel more comfortable with legal representation.
- Empowering – Disputing parties are directly engaged in the negotiation of their settlement. Parties also enhance the likelihood of continuing their relationships by utilising mediation.
- Confidential – Information disclosed during mediation may not be divulged as evidence in any trial or judicial proceeding.
The Process of Mediation
The process of mediation is a guided negotiation, helping the parties to communicate with each other, exploring the issues which are of real importance to them, which often differ from their ‘rights’. The parties are encouraged to find ways to address their present and future needs, rather than dwelling upon who may have been right or wrong in the past.
Parties in mediation avoid the uncertainty and dissatisfaction often experienced in court or at arbitration where they have little choice but to accept the judgment made, which none of them may be happy with.
Everything said at the mediation is entirely confidential to the parties (unless specifically agreed otherwise) – unlike the potential publicity of court proceedings.
The mediation process is ‘without prejudice’, so that on the rare occasion that a settlement is not reached litigation may continue without the parties needing to worry about having ‘given away’ anything that the other could use in court.
Mediation is voluntary; any party may withdraw at any time.
The Mediation is arranged at a venue convenient to the parties, who each have their own room as well as a separate room for joint meetings. The Mediator listens to everyone’s point of view, talks to the parties privately and together, guiding them towards a settlement.
Nothing is binding upon any party until an agreed settlement is reached. Once a settlement has been drawn up and signed, it becomes an enforceable contract between the parties.
The above information has been sourced from The Australian Mediation Association (AMA). For any further information about Mediation, please visit the Australian Mediation Association website.