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GUIDELINES FOR MEDIATION
By Adrian Corbould, Accredited Specialist - Wills & Estates, Turnbull Hill Lawyers
Mediation is a process where a neutral and independent person (a mediator) helps the parties in a dispute to reach their own solution.
It is an alternative to having a Judge make a decision after a contested hearing between you and the other party. A Judge would give a decision after hearing the case, usually in open Court, establishing the evidence that is admissible and then determining how the law applies to the case.
At mediation, each party has the opportunity to voice their point of view. The mediator helps the parties to focus on the real issues of the dispute and explore options to resolve them. The mediator does not impose a solution or give tactical advice.
In mediation, the options that can be explored to resolve the dispute are often broader than those that can be considered by a Judge of the Court.
If the parties resolve their dispute at the mediation, they may make a written agreement and have orders made by the Court to finalise the case. Those orders have the same standing as orders made by a Judge, and can be enforced, if necessary.
In contrast to Court proceedings, which are open to the public, the mediation process is private and confidential. Anything said or produced in evidence at a mediation session cannot be used in a later hearing, except in exceptional circumstances.
It is the duty of all parties to the mediation to participate in good faith. A mediator can terminate a mediation session and make a report to the Court if this duty is breached.
There are numerous benefits that can arise from mediation, including:
Early resolution
Less costs to parties
Greater flexibility in resolving the dispute
Finality
Privacy
This is done by a Court and mediation is compulsory in family provision claims once each party's evidence has been filed.
With Court annexed mediation, there is no charge for the mediator or use of rooms. The cost of legal representation is the responsibility of each party.
Court-annexed mediation is where a registrar of the Court is the mediator.
The registrars and officers who conduct mediations are qualified as mediators. The majority of matters resolve at mediation.
The mediation usually takes place at the Old Supreme Court building on King Street. There is no charge for the mediator or use of rooms.
If the mediation is private, generally the parties pay for the mediator and the rooms, hence why most parties opt for Court-annexed mediation as there is no cost to the parties.
Parties should be ready to attend the mediation with the purpose of achieving an acceptable resolution of the dispute. This usually involves some compromise. It is the duty of each party to participate in good faith. A mediator can terminate a mediation session and make a report to the Court if that duty is breached.
Each party is to attend the mediation in person.
Parties should be prepared to treat all participants in the mediation with common Courtesy.
Parties should have thought about the issues that are important to them, and possible options for resolving these. Each party will be given the opportunity to discuss their issues uninterrupted at the mediation.
Parties should also have thought about what their best outcome would be, and also the extent to which they would be prepared to compromise.
Parties should be aware of their legal costs to date, and future legal costs if the case proceeds to a Court hearing. Parties should understand that if they if they proceed to hearing but the judgment goes against them, they can be ordered to pay the legal costs of the successful party.
