Frequently Asked Questions on Mediation

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Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties. 

Statistically over 70% of cases settle during a mediation process.

Mediation offers many benefits over a trial by a judge, including:

• Time: ordinarily a dispute can be resolved more quickly through mediation than through a trial.
• Cost: if a dispute can be resolved through mediation, the costs of preparing and running a trial can be avoided. Additionally, after a trial the unsuccessful party may be ordered to pay the legal costs of the successful party.
• Flexibility: mediation offers parties more control over the outcome. A mediation process which is customised to your needs can be arranged with the mediator.
• Stress: mediation is less formal and less intimidating than appearing in court.
• Confidentiality: mediation is private. The judge is not informed of the contents of the mediation. It is also usually unable to be used against a party if the case goes to trial. (The Court recommends you discuss mediation confidentiality with your lawyer).
• Satisfaction: because 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 can usually only be modified with the agreement of all parties.  The Court process may allow appeal. pathways.

Yes, mediation is conducted on a without prejudice basis and is confidential.

This means that anything said, any admissions made, or any offers put forward during mediation cannot be used later in court, at NCAT, or in any other legal proceedings. These matters also cannot be shared publicly, posted on social media, or included in future documents. This confidentiality encourages parties to speak openly and honestly during mediation.

This courts of Australia recognise and uphold the confidentiality of mediation and a breach is taken seriously. 

The parties are in ultimate control of any decision to resolve their dispute. It is essential that people attend the mediation with sufficient knowledge of the relevant issues in dispute and the authority to make decisions about how it might settle after the mediation. If attending on behalf of an organisation an authorised officer who is able to make a decision about how the dispute might be settled and to enter into an agreement on behalf of the organisation is required.

Yes, you can agree to mediation prior to entering a contract.   Many dispute resolution clauses require mediation prior to litigation.  Even if you have not agreed to mediation in the contract terms you can agree to mediation at anytime.  

Mediation is often a voluntary process. Other than a court order no one can make you attend mediation against your wishes. If you or the other party do not agree to mediate then MEDIATUS can not provide assistance.  You should review your contract or any agreement terms with the other party as this may require mediation prior to litigation or arbitration.

Mediation is informal and can be structured according to your budget.  There are no court filing fees, deposition transcript costs, or other court expenses associated with mediation. Discovery is not required in mediation and the entire process is designed to avoid or keep legal costs down.

Mediation is  a cost-effective alternative to litigation, arbitration or other forms of disputes resolution such as adjudication. The process is usually quicker, reducing the amount of paid legal hours. Moreover, it can also eliminate the need for a trial, which can be exceptionally expensive.

Mediation offers many benefits over a trial by a judge, including time.   In the vast majority of cases a dispute can be resolved more quickly through mediation than through a trial. 

Mediation provides parties with more control over the outcome of their dispute.  You do not have to agree to anything but at the same time the resolution is only limited by your imagination.  The court and legal processes are limited to legal remedies whereas mediation may involve commercial and other bespoke resolutions.  The outcome of a mediation is final (subject to settlement agreement terms).   Mediation does not have the same risk of appeals that a judgement of the court.

 Some concerns arise because:

• Parties do not mediate with "good faith" intent to work together to resolve the dispute.
• Parties don't listen to each other and are not hearing what is said.
• Parties are not willing to separate the person from the problem.
• Failure to have the right representative with the necessary authority to settle present.

MEDIATUS will assist to mitigate these risks.

One of the biggest and most common obstacles in mediation is when litigators refuse to budge from their courtroom arguments and conduct themselves as though they are presenting their case to a judge or jury. Mediation and litigation are different, and lawyers' roles in each are too.

When disputes can't be resolved by mediation, parties may consider that the mediation was unsuccessful.  Even if the matter still needs to go to a court a mediation that does not resolve the entire dispute may narrow the issues in dispute.  Going to court is a long, stressful and expensive process. The aim of mediation is to avoid the situation reaching this point.

Mediation does not prevent litigation. It can occur at the same time or after. If an agreement is not reached in mediation, the parties are still free to pursue court proceedings or take other legal steps. In practice, most mediations do resolve the dispute, but where they don’t, the confidentiality of the mediation process remains protected and litigation is still an option. 

MEDIATUS can help in more ways than we can list. Contact us to find out more.

Connect with us now at connect@mediatus.com.au or call 0452071075 to discuss your options.