Photo Courtesy: William W collected from Unsplash
Sometimes we fail to use a very powerful tool in our reach because we do not know how to use it. Mediation is such a tool. Most of us do not know how mediation can help us to resolve our dispute while keeping the legal cost low and preserving the relationship. Going through a traditional legal process of dispute resolution can be very complex, costly, stressful and time-consuming. To avoid the complexities of the process and to save our time, money as well as the relationship, we often get the recommendation to take resort of the alternative dispute resolution.
Now the question is what is mediation and how does it work? How will we know that it would be the right solution for us?
Mediation is a form of alternative dispute resolution. It is an alternative system of resolving the dispute between the parties rather than a judge imposing a decision on them. Following are the 5 important things we need to know about mediation.
1. What is the Mediation Process?
Mediation is a structured negotiation process. In this process, an independent person, known as a mediator, will help the parties to the dispute to identify, understand and assess their options. The Mediator also assists the parties to negotiate an agreement to resolve your dispute. It is a flexible process that helps in crafting a solution to a dispute that will be suitable to the parties.
Mediation is designed to help you to avoid the downsides of litigations like heavy costs, loss of time and resources and emotional stress. The mediator, who is usually a trained dispute resolution professional, will assist the parties to reach their agreement. The mediator will usually not express a view about the merits of the matter. He/ she will be there to assist you to reach your agreement. Mediator’s actions or decisions are not binding on any parties. A dispute is settled in mediation only when the parties reach their agreement. If you are not happy with the resolution after the negotiation process, you do not have to agree to that. You will always have the option to go to court if the mediation fails.
In Victoria, mediation is an established process of dispute resolution. Courts and Tribunals regularly order civil and family law disputes to go through mediation before trial. If you could not reach a settlement through the mediation process, you can go through the normal court process. Mediation is a very confidential process. It does not affect the parties’ rights in any way. Therefore, if the matter is not settled, anything said during the mediation cannot be used when the matter goes to trial, except for certain family law matters where safety issues are involved.
2. What are the benefits of Mediation?
Mediation is a very effective way of dispute resolution. It can have the following benefits:
Fast resolution- As mediation involves a simpler process, generally a dispute can be resolved quickly through mediation than through a trial.
Cost-effectiveness- If a dispute can be resolved through mediation, it can save you a lot of money by avoiding the costs of preparing and running a trial.
Flexibility- Mediation offers parties more flexibility and control over the outcome. In mediation, the resolution can arrive only with the consent of all the parties involved.
Less Stress- Mediation is less formal and less intimidating for the parties than appearing in court.
Confidentiality- Mediation is a very private and confidential process. The judge will not be informed of the discussions and negotiations at mediation. The discussions, that happened in mediation, are usually not allowed to be used against a party if the case goes to trial.
Satisfaction- As the parties decide and agree on the outcome of their dispute, they are more likely to be satisfied with the result and to comply with what has been agreed.
Finality- Settlement agreements achieved by mediation can usually only be modified with the agreement of all parties.
Efficiency- Even if a dispute is not settled at a mediation, it creates an environment that is conducive to further negotiation. The mediation process usually helps the parties to narrow the range of issues. Therefore, it helps to limit the scope of a later trial. A lot of disputes, that do not settle at mediation, settle soon after.
3. Which cases are suitable for mediation?
All civil cases, regardless of their complexity or number of parties, and most of the family law cases are eligible to be referred to mediation. Following are the factors that indicate whether the dispute is suitable for mediation:
where the parties are willing to participate in mediation;
where it is a possibility that a judge’s decision will not end the dispute;
where it is important for parties to find a way to preserve their relationship;
where the non-monetary factors are more important; and
where it is likely that a negotiated outcome of the dispute will better suit the needs and interests of the parties than a judge’s decision.
The types of disputes that are commonly referred to the mediation are very diverse and include the following:
Contractual disputes;
Tenancy disputes;
Commercial disputes;
Estate related disputes;
Disputes involving Small businesses;
Disputes between neighbours;
Family Law matters;
Disputes about companies and partnerships;
Workplace and employment-related disputes;
Intellectual property-related disputes,
Industrial law-related disputes,
Dispute relating to consumer law,
Human rights disputes,
Admiralty matters,
Tax and costs related matters.
4. How do I find the right mediator?
Parties to a dispute can agree to appoint the mediator of their choice. It means that you can appoint your mediator with an agreement with the other party to the dispute. However, we recommend choosing an accredited mediator who is specially trained to resolve disputes. Many barristers, solicitors and some retired judges become accredited mediators.
Sometimes a mediator with particular knowledge or expertise in the subject matter might be appointed even though they are not on the list of accredited mediators.
5. How much does a mediator cost?
There is no fixed cost for the mediation process. The fees for the mediators can vary depending on the nature of the dispute and the expertise of the Mediator. However, as a general rule, the costs of the mediation are borne equally by the parties. So, if there are two main parties, they each pay half of the costs. If there are more parties, the costs get divided equally amongst all the parties.
Senior commercial barristers usually charge from $2,000 per day to $10,000 per day while acting as Mediators. However, the amount can vary depending on the arrangement. Some mediators charge reading and preparation time whereas others do not. Parties will usually incur the legal costs of their lawyers preparing for and attending the mediation.
If you need more information about mediation or need help to find a mediator to resolve a dispute, please contact us at www.lawcircuit.com.au, or call us at 0418631798 or email us at bonhi@lawcircuit.com.au