What is Mediation?

Mediation is a positive, forward-thinking way of resolving disputes using a neutral third party (the mediator) to help facilitate a settlement. The process is entirely confidential, and non-binding until an agreement is signed.

Arrangements are made for the parties to the dispute to attend a mediation meeting usually at a neutral venue. Each party and the mediator are obliged to enter into a mediation agreement.

Each party presents its case to the mediator, usually in a joint session. They may or may not be legally represented if it is a civil (i.e. non-family) case. In family cases each party is unrepresented but they are able to seek legal advice in between mediation sessions.

The mediator may then (depending upon the circumstances) split the parties into private sessions where each party’s position will be discussed in confidence with the mediator. The mediator continues to discuss opportunities for settlement in a mixture of joint and private sessions, as he or she considers appropriate.

By gaining an over view of the conflict, exploring the options, needs and priorities of the parties, the mediator is usually able to facilitate a settlement agreement that both parties are content to sign. Once the parties sign an agreement, it is normally legally binding.

Why should I consider mediation?

If you've not started to, or given up on, negotiating a settlement of your dispute directly with the other party, mediation may be the most painless and efficient way to solve it. Mediation is quick, private, fair, and inexpensive compared to legal proceedings.

Mediation sessions are usually arranged within a couple of weeks or, at most, a couple of months from the time of a request.  On the whole sessions last only a few hours or a day, depending on the type of case. In contrast, legal proceedings often take many months, or even years, to resolve.

Mediation is particularly valuable when your dispute involves another person with whom (either by choice or circumstance) you need to remain on good terms with.  Legal proceedings can polarise and destroy relationships. An advantage of mediation is its ability to achieve resolution of the dispute with a view to preserving a respectful relationship.

Another advantage of mediation is confidentiality. With very few exceptions (for example, where a criminal act or child abuse is involved), what you say during mediation cannot be revealed outside the mediation proceedings or used later in a court of law.

By contrast, one of the drawbacks of going to court is that, by and large (but not usually family proceedings), everything said or submitted in connection with the proceedings becomes available to the public.  Only by a special order of a judge can information be prevented from public exposure. 

So if your desire is to protect your business secrets or just to avoid airing your dirty laundry, your privacy will be substantially greater with mediation than with litigation.

In addition, mediation will nearly always save you money as complex cases can be settled for a fraction of the cost of pursuing legal proceedings.
If you're already involved in legal proceedings mediation offers a huge benefit: It gives you a way to resolve the dispute and leave the court system behind. Mediation often works even if the parties have hired lawyers and the dispute has progressed to all-out litigation.  Because parties can speak for themselves in mediation, they can bring up creative ideas, personal feelings, and practical solutions that litigation might discourage. 

In non-family mediation there is also the scope for legal representatives to be present at mediation.  The mediator can point out, in different terms than lawyers may use, the strengths and weaknesses of each side's position. 

Finally, agreements reached through mediation are more likely to be carried out than those imposed by a judge. 

After a Court Order is made the losing party is almost always angry and often prone to look for ways to avoid implementation of the judgment. In contrast, a number of studies show that people who have freely arrived at their own solutions through mediation are significantly more likely to follow through on them.

What kinds of cases can be mediated?

Most disputes can be mediated, including those involving contracts, leases, small business ownership, employment and divorce. E.g. a contractual dispute may be resolved by mediation, or a divorcing couple might mediate to work out financial settlement terms or mutually agreeable arrangements for children, or estranged business partners might choose mediation to work out an agreement to divide their business.

How long does mediation take?

Typically consumer claims or small business disputes are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer: Add at least an hour of mediation time for each additional party.

Major disputes such as those involving lots of money, complex contracts, or ending a partnership may last several days or more.

Family mediation, where a couple aim to settle all the issues in their divorce -- property division, maintenance, arrangements for the child/ren generally require four to six mediation sessions of one to two hours each spread over several weeks or months.

How can I be sure mediation will produce a fair result?

In mediation you and the other party to it, with the assistance of the mediator, will work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court where a decision can be imposed upon you.

Are there some cases that should not be mediated?

All parties to a dispute must agree to mediate. If one party refuses or isn't competent to participate the case cannot be mediated.  Plus mediation may also not be suitable if:

a)    one of the parties wants to prove themselves right because mediation agreements do not establish who is "right" or "wrong". Mediation decisions apply only to the parties involved in that particular mediation and not to other similar cases.

b)    one of the parties feels intimidated or intellectually overwhelmed by the other, in which case it's hard to arrive at a true meeting of minds although it is possible for this to be addressed by the mediator.