What is Mediation?
Mediation is a process in which people, organizations or businesses in dispute meet together in good faith with a Mediator to reach an agreement that is satisfactory to all parties.
Why choose mediation over a legal process?
Mediation has many advantages over a legal process:
- Mediation aims for a win-win for the parties, unlike the legal system which is adversarial (i.e., there are winners and losers).
- Mediation can be organized relatively quickly compared with waiting times for court dates.
- Because mediation does not involve lawyers and courts, the costs are manageable.
- The disputing parties retain ownership of the process. They are responsible for setting their agenda, generating options and formalizing an agreement. When parties retain ownership of all stages of the process, the agreement is more likely to be sustainable.
- The outcome of the mediation – a negotiated agreement – can be legally binding within the limits of the law. It may have the status of a legal contract, which gives it sufficient weight to ensure its terms are honoured by the parties.
- Parties select their own mediator. This encourages the development of rapport between the mediator and the parties, assisting them to negotiate in good faith.
- The mediation does not require a specific location such as a court or legal chambers. It may be conducted in any mutually agreed venue. This makes the process more portable and is hence more readily available to participants from regional and rural centres.
- Many people with grievances or disputes are seeking to be heard by an empathic listener with authority. This reduces many people’s need to “have their day in court”, which may not end with the desired outcome for the participant and which may leave them worse off (e.g., having to pay costs of the other party) than they were before the court proceedings.
- The mediation process is much shorter and more streamlined than court processes which may extend the dispute over months or years.
To what kinds of disputes does mediation apply?
Mediation can be applied in a number of settings including businesses, community organizations, schools, families, and individual parties.
For example, mediation can assist workplaces to deal with bullying.
Following the “Brodie” legal case in Victoria in 2011, legislation has been has been introduced in that state, with other Australian states and territories following. Owners, managers, and supervisors are now under a legal obligation to protect people in the workplace from bullying. It is now a criminal offence and people found guilty of bullying or ignoring bullying may receive prison sentences.
Refer to “Background Briefing” ABC Radio National” 13th July 2011 link: http://www.abc.net.au/radionational/programs/backgroundbriefing/bullying-at-work/2920408
What is the role of the Mediator?
A good mediator is a neutral, respectful and objective professional who assists parties to resolve disputes. Mediators may also be psychologists or lawyers, but to practise as a mediator requires specific training in mediation to become accredited.
What are the possible outcomes of mediation?
- If resolution is achieved, the mediator can prepare a settlement agreement for both parties to sign. In complex matters, the mediator may recommend that the parties take legal advice on the wording of the document to ensure it represents the detail of the agreement accurately. This document can then have the status of a legally binding agreement.
- If no agreement is reached, the parties may choose to litigate using the Courts, or they may choose to do nothing.
What is the cost of mediation?
Mediation costs are vastly less expensive than legal fees and litigation. Hourly rates vary between mediators based on level of experience and skill of the mediator and whether specialised knowledge is required.
Parties generally agree to share equally the cost of mediation. This further reduces the overall cost to each party.