About Mediation

 

 

• Mediation what is it?

• Mediation and the Legal profession ... how are they different?

• Does Mediation involve impartiality?

• If mediated negotiations are successful, what next?

 • Uh oh, what if negotiation through mediation doesn't result in agreement?

• How much does mediation cost?

• What makes mediation an intelligent remedy in settling business disputes?

• Using mediation in the workplace - for example, to eliminate bullying

 

The process of mediation is where people meet with an independent person (the "mediator") to negotiate an agreement to end a dispute. The mediator does not impose any outcome; just assists the process of reaching a resolution.

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Western countries such as Australia, use a legal system described as being "adversarial.  There are two groups of lawyers: one for the initiator of the proceedings; the Plaintiff (the 'complainant' or 'petitioner') and the person defending the case, the Defendant (the person against whom the Plaintiff makes an accusation).

The typical style of lawyers' behaviour from the beginning is to vigorously represent their client in developing a one sided argument.

Consequently the lawyers tend to expand the dispute as they search for as many additional contentions and allegations against the defendant as can be created.

Not surprisingly  straight forward matters of insignificance matters are often put forward so they become less understandable and intricate. This leads clients into a legal fight all out of proportion to the nature and detail of the original dispute.

Pleasingly, mediation, by contrast tends to focus discussion only to the important and original essential issues and focus activities on reaching a mutually sensible resolution at the minimum of cost to everyone in a minimum of time.

So the possibility of a prompt resolution is another attractive feature of mediation. The reason for mediation's capability of promptness is generated from its priority in securing agreement without unnecessary delay. With the parties working together instead of against each other, higher efficiency occurs, thus meaning that the resolution cost is much, much less than that of extensive legal wrangling.

   

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Yes. The expert mediator acts neutrally, but at the same concentrates on helping people identify ways of securing a settlement. In private consultation mediator can advise each party, by application of positive thinking, ways in which they can look at the matter  with objectively. The mediator does not put pressure on clients to agree to solutions, but will promote the methods of reaching an accord.

  

 

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A settlement document can be prepared by the mediator (strongly recommended to reduce the likelihood of a dispute recurring!) for the parties to review and then sign if it correctly reflects the agreement reached. A cautious mediator will recommend that the parties obtain legal advice on the draft of the document to make sure that it  efficiently describes the components of the dispute and the resolution.

    

 

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In many such cases,  all is not lost. There may be (and in fact there is likely to be) some agreement on certain aspects of the matter. Even with some items unresolved, the agreements to them should be recorded in an agreement document. A partial agreement, entered into in a spirit of goodwill, can often lead to a resolution of the rest of the dispute at a later stage.  Further, should litigation be needed (using the Courts), to resolve the rest, then the matter's complication will have been minimised and the legal costs should correspondingly be minimised. This strategy was wisely implemented in a famous case in New South Wales some years ago which involved a dispute involving hundreds of millions of dollars.

But if there is absolutely no agreement through mediation, there are at least two options: 1. To start court proceedings or 2. To accept the matter as being  unresolved and take no action.  Neither option is attractive and hence they remind the participants that a fresh attempt using mediation, perhaps with a new mediator, could lead to success. This is commonly successful in international mediation between countries.

   

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The cost of mediation is shared 50/50, and so the cost is almost always only a fraction of that of litigation. Remembering that the mediation process narrows the extent of the dispute, the professionals'  time involved is considerably less and hence is the total cost.

Mediation is charged by the hour. The fee varies depending upon the experience and skill of the mediator, whether specialised knowledge is required, the complexity of the matter and how many parties there are.

However, in essence,  mediation is the most economical method of obtaining help with dispute resolution. At a result,  it is highly valued by people who are aware of its valuable opportunities and methodology.

 

 

 

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For business, even one dispute can be financially and strategically crippling. Left to inflame relationships and disrupt business activities, a dispute can generate ever-increasing resentment, adverse publicity and distractions for management.  For personal business disagreements (eg workplace disputes), mediation provides opportunities for re-establishing relationships, and reducing or eliminating ill will between colleagues.

Then there is the benefit of saving money.  Personal savings of a life time can be lost when expensive ongoing legal proceedings seem to have a life of their own, escalating out of control and amount to far more than may have been contemplated before legal proceedings began.

Mediation is the epitome of plain common sense.

 

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We read regularly of  news items about workplace bullying. Commendably, after the tragic "Brodie" suicide case in Victoria in 2011 (Brodie Panlock), legislation was introduced by the state Victorian government to render bullying as a criminal offence. In late 2012, it was announced that the other Australian states and territories will be following with similar legislation. Business owners, corporate board members, line managers, and supervisors are, or will have a legal responsibility to employees and partners from the torture of bullying. In Victoria, as a result of the state government's prompt initiative, bullying became a crime punishable by imprisonment for those people found guilty or even for management which played a part by ignoring the fact that bullying was occurring.

Refer to  “Background Briefing” ABC Radio National” 13th July 2011 link:  http://www.abc.net.au/radionational/programs/backgroundbriefing/bullying-at-work/2920408

Mediation can used to stop bullying in its early stages. Any organization; business, not for profit or government, should make mediation services (via external mediators) accessible by employees. The option should be explained in employees' induction manuals, procedure documentation and conduct codes.

 

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Mediation Australia - Brisbane
Incorporating “Alternative Dispute Resolutions”

Mediation Brisbane Office

 

1300 267 268

 

Ann Street, Brisbane Queensland 4000

  • When you call us initially with your enquiry, there is no charge. We are pleased to answer any of your questions.
  • Your questions will be happily answered by expert mediators.
  • You can then make an appointment to discuss your matter with us.

Appointments can be made at our nearest office to you.

 

Call  us 1300 267 268 or email us:
                                                                
Email:  info.brisbane@mediationaustralia.net.au

 

Mediation Australia Head Office
You are welcome to contact our Head Office in Adelaide if you have any questions or comments about our services.

 

Phone: 08 8379 2910 / 0409 837837
or email us and we will call you.
info@mediationaustralia.net.au
Postal Address:
Mediation Australia,
Level 2, 229 Greenhill Road Dulwich
South Australia 5065



Mediation Australia
Incorporating “Alternative Dispute Resolutions”
Ph:   
          1300 267 267

Consultations by appointment:
Diamond Offices - Lower ground floor 65-67 Burelli Street
Wollongong NSW