Mediation is one of a number of alternative dispute resolution (ADR) processes which aim to encourage parties to resolve legal disputes before proceeding to trial.
Though generally a voluntary procedure, the importance of attempting to resolve matters before trial is reflected in court timetabling orders in Victoria, which stipulate a date by which parties must have mediated their dispute.
How does it work?
Present at mediation will be representatives of the parties to litigation and a mediator, usually agreed upon by the parties but sometimes appointed by a court.
The mediator is not there to impose a decision on the parties or to tell the parties what she thinks will be the outcome if the proceeding goes to trial but rather to try and guide the parties to a resolution through the process of negotiation and asking the parties to think about what is in their best interests.
There is no formal process of mediation but as a general rule the mediation opens with a general session where the parties state their respective positions. The mediator may ask questions in order to understand the issues better or even explore what strategies may work to bring about resolution.
Once the general session has concluded the parties then go into private session where the mediator assists the parties to explore how best to resolve the dispute and then conveys any offers or counteroffers between the parties they may wish to make.
A skilled mediator will encourage the parties to talk through issues and direct those discussions on the relevant issues.
If a settlement is reached at mediation, especially in relation to commercial disputes or disputes between parties who are individuals and had a former business relationship, which has broken down, the mediator will ask parties to sign terms of settlement or a deed of release before she closes the mediation.
What are the advantages?
- Costs – Running a proceeding to trial can be very expensive. Mediation can avoid the need to commit considerable resources to trial preparation.
- Mediator’s assistance – Not only does the mediator facilitate the process, but a skilled mediator can foster better discussion between parties, suggest alternative options and where necessary ask parties to think about how likely their case is to succeed if it proceeds to trial
- Tailored resolution – As the terms of the agreement are for parties to negotiate, outcomes much wider than a judge can order can be shaped to include apologies, agreement as to the parties further conduct towards each other and confidentiality , apart from the simple payment of money.
- Less risk – Even the strongest-looking cases on paper can lose at trial. Coming to an agreement before trial removes this risk and provides certainty as to the resolution, which the parties themselves fashion.
- Confidentiality – Mediations are conducted on a confidential and without prejudice basis, meaning that parties can negotiate without the fear that anything they have said or any offers they have made during mediation will be used against them at trial.
- Less adversarial –mediations are more likely to ensure the preservation of an ongoing relationship between parties.
How can Nevett Ford assist?
Nevett Ford has a wealth of experience acting for both plaintiffs and defendants in mediations and other ADR processes for over 25 years. For further information, please contact our Workplace Relations Lawyers on 03 9614 7111 or email to melbourne@nevettford.com.au.