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Mediation

Mediation

What is mediation?

Mediation is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties.

Mediation generally involves the assistance of an independent third-party person, the mediator, who helps the parties negotiate a settlement of their dispute. The mediator uses their experience and skills to help the parties work through their problems to arrive at a solution.

The mediator won’t tell you what to do or give advice about what decision a court would reach. Mediators also won’t decide who is right or wrong. Instead, they’ll try to help everyone reach an agreement by identifying the issues, discussing options and working out alternatives for resolving the dispute.

Mediation is a flexible process that can be used to settle disputes in a whole range of situations such as family law, employment law, commercial disputes and civil claims. Mediation is an effective way of resolving disputes without the need to go to court.

It is also important to remember that mediation is still an option even after court proceedings have been commenced.

Parties participate in mediation to maintain control of the decision-making process and to make a good faith attempt to resolve their dispute. The mediator will provide a structure for parties to find common ground and discuss the issues in dispute.

Agreements in which the parties negotiate themselves are more likely to be complied with and reduce the risk of further problems. Parties report feeling empowered by being able to have a say in what happens and reaching terms they are comfortable with.

Any negotiations during mediation are confidential and nothing you say can be used in court. Mediators are obligated under law to disclose information in certain circumstances, however, such as where there is a risk to a child. This is called mandatory reporting.

Why choose mediation?

There are a number of reasons why parties might choose to mediate, including that it:

  • Focuses on reaching an outcome that suits all parties
  • Allows parties to maintain control of the decision-making process
  • Is less formal than going to a court or tribunal
  • Often leads to disputes being settled early, reducing costs and stress
  • Usually takes less time than a formal hearing.

Even if the parties cannot resolve the dispute through mediation, there are still often benefits to going through the mediation process, particularly when it clarifies and narrows down the issues in dispute. This helps in reducing costs and the length of the court proceedings.

What is the mediator’s role?

The mediator will provide parties with the opportunity to talk about their concerns and allow them to exchange information and negotiate an outcome. The mediator does not offer advice or impose a solution.

How does the mediation process work?

Usually, there are two stages in any mediation: the preliminary conference and the mediation itself.

The preliminary conference

The mediator arranges a preliminary conference at a time and location convenient for the parties. The parties, their solicitors (if represented at the mediation) and other advisors and support persons must attend the conference to sign the Agreement to Mediate, which defines the roles of all participants. After all participants have signed the agreement, the mediator will conduct the mediation session. This may be held straight after the preliminary conference or at another time.

During the preliminary conference the mediator will explain how the mediation works and discuss anything that needs to be done before the mediation session to make sure it is productive. They will also ask the parties to agree to a timetable for the exchange of information.

The mediation

At the start of the mediation session, each party outlines their issues and concerns. The mediator uses this information to set an agenda, identifying areas of common ground as well as those issues that need to be agreed on. The mediator will then help everyone explore each of these issues in detail.

At some stage during the mediation session, the mediator may ask to meet with each party individually, so everyone will have the opportunity to consider the issues and explore options confidentially and in private. The parties will then usually complete the mediation by negotiating terms, which will be written down and signed.

During the mediation session, the mediator helps the parties identify the cause and nature of the dispute, explore options and negotiate a settlement. The mediator does not impose a solution or offer legal advice. Where settlement is achieved at the conclusion of the mediation, the parties will be expected to give effect to their agreement in the best possible way. In most cases, this will involve one of the parties giving consent or agreeing to be bound by terms of settlement and such agreements may be converted into Consent Orders.

What qualifications will the mediator have?

Mediators are often qualified solicitors who meet the criteria required to sit on the Law Society of New South Wales’ Mediators’ Panel. Most have many years of experience and have facilitated a number of negotiations.

Is mediation right for you?

Your solicitor can let you know whether your case is suitable for mediation. Generally, mediation can be an option in any dispute where the parties are committed to reaching an agreement. This often includes disputes involving personal injury claims, partnership disputes, commercial and contractual disputes, family law disputes involving financial or property matters, disputes about wills and estates and debt recovery disputes.

What will mediation cost?

The Law Society of New South Wales’ mediation service costs $825.00 (including GST) per party. This includes the mediator’s fee of $660.00 plus a non-refundable administration fee of $165.00.

The Law Society of New South Wales’ Mediation Program offers four hours of mediation (including a one hour preliminary conference) conducted by a nationally accredited solicitor-mediator with expertise in the relevant area of law.

The mediator’s fee is refundable if a party withdraws prior to the preliminary conference. However, only $330 per party is refundable should the matter be withdrawn after the preliminary conference but before the mediation.

In all cases, the Law Society of New South Wales retains the administration fee.

How can a solicitor help?

If you are involved in a dispute and are considering mediation, a solicitor can help in many ways. This includes:

  • Advising the parties on whether or not mediation is a suitable way to try to resolve your case
  • Describing how the mediation process works and helping you prepare for the mediation
  • Contacting the other party to the dispute for you
  • Referring your case to the Law Society of New South Wales’ mediation program
  • Engaging a mediator on your behalf
  • Attending the mediation with you to advise and assist you as it unfolds

Other requirements

Where a party is not an actual person (such as an organisation or company), it will need to be represented by a person who is authorised to settle the matter. Parties may have one or more persons, including a solicitor, to assist and advise them during the mediation.

How to apply

To apply, parties need to:

  • Complete an online Mediation Program application form or contact the Dispute Resolution Legal Officer on (02) 9926 0396
  • Pay the initial mediation fee

Once the fee is received from both parties, the Law Society of New South Wales will appoint a mediator.

Family Law Settlement Service

The Family Law Settlement Service (FLSS) is a mediation program, administered by the Law Society’s Alternative Dispute Resolution section, suitable for financial or property disputes that are at the post-conciliation conference stage. The program is designed to avoid the costs, uncertainty and delays of having a dispute determined at a final hearing.

How does the FLSS work?

Parties participate in mediation to maintain control of the decision-making process and to make a good faith attempt to resolve their dispute. The mediator will provide a structure for parties to find common ground and discuss the issues in dispute. All agreements are made between the parties – there are no imposed decisions. Solicitors should refer to the FLSS process if they deem the program suitable for their clients.

How much does it cost?

The fee payable is $990.00 per party – this fee covers the mediator’s fees ($825.00) and the FLSS administration fee ($165.00). The fee covers:

  • A two-hour preliminary conference and preparation, and
  • A three-hour mediation session

If the mediation goes for longer than three hours, then the parties will be charged at an hourly rate as advised by the mediator during the preliminary conference. Any additional costs for venue hire (if required) are shared between the parties.

Who is on the FLSS panel?

The panel consists of solicitors and barristers who are also qualified mediators. To be appointed to the panel they must have demonstrated that they have a substantial involvement in family law in the three years prior to being appointed. They will conduct conflict of interest checks before agreeing to be appointed to your matter to ensure impartiality.

For more information on the Mediation Program and the Family Law Settlement Service see our website.

Or contact the ADR Department on (02) 9926 0396 or adr@lawsociety.com.au

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