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Mediation
Mediation is a structured negotiation process in which ITO Mediation is
an independent entity, known as a mediator, assists the parties to
identify and assess options and negotiate an agreement to resolve their
dispute.
All cases, regardless of their complexity or number of parties, are
eligible to be referred to mediation. The types of matters commonly
mediated at the Federal Court include corporations law, intellectual
property, industrial law, consumer law, human rights, admiralty, tax,
divorce and costs.
Is it
for me?
Some
factors about your dispute may indicate that it is particularly suited
to mediation, such as:
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A
willingness to participate in mediation;
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The
possibility that a judge’s decision will not end the dispute;
-
The
need for parties to find a way to preserve their relationship;
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The
existence of non-monetary factors; and
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The
potential for a negotiated outcome that better suits the needs and
interests of the parties than a judge’s decision.
 Why
mediate?
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 customized to your needs can be
arranged with the mediator.
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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.
Who
attends mediation?
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 organization the Court requires the attendee
be an authorized 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
organization.
If you are not legally represented you may ask to bring someone for
support.
How do
I prepare for mediation?
You can improve the quality of your mediation by considering:
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What issues are in dispute, including the facts and sources of
conflict;
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What is important to you in any resolution of your dispute. The
interests that you wish to preserve or pursue may be different to an
outcome sought through a trial;
-
How
best to communicate this information, both to the mediator and the
other party;
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What you would say at the start of the mediation, to assist in
resolving the dispute;
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What the other party’s aspirations might be and how these might be
accommodated in any offer of settlement;
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Possible contents of an offer and methods of communication;
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What costs have already been incurred, are likely to be incurred and
what part of these might be recovered; and
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The
possible outcomes if the matter were to proceed to a trial,
including the dollar value of any damages claimed and any limits on
the Court to award these.
 What
happens at mediation?
Before
commencing mediation the mediator will consider the best process for
mediating your dispute, taking into account suggestions from all parties
where possible. The mediation will commence with an explanation of the
process, followed by a discussion about the background of the matter and
issues in dispute.
The mediation itself is flexible and can be tailored to the
circumstances. Mediators may assist negotiations by asking questions,
encouraging open discussion, offering different perspectives and
expressing issues in alternative ways. Parties may be encouraged to
identify and test the consequences of potential solutions. It is common
for the mediator to meet with the parties jointly and separately and
further mediation sessions can be scheduled if necessary.
What are the possible outcomes of
mediation?
The case may be settled in full or in part or parties may not be able to
reach agreement.
If agreement is reached about part or all of the dispute, the details of
that agreement will usually be recorded and signed by all parties before
the end of mediation. If the dispute is settled in full the mediator
will notify the judge that the matter has settled. The mediator will not
provide the judge with any details of the mediation discussions or the
terms of any agreement the parties reached without the permission of the
parties. Once the agreement is finalized the parties will usually
formally notify the Court that the case is not going to proceed and the
case will be closed.
If the matter is not fully settled there may be discussion about what
needs to be done to prepare for trial and the file will return to the
judge. The mediator will notify the judge of the outcome but not the
content of the mediation. Even when a matter does not settle
clarification of the issues often occurs. Mediating a dispute does not
mean there will be a delay in it being heard by a judge.
How much does mediation cost?
All fees that apply to mediation is ordinarily paid by the applicants,
unless otherwise ordered. In some circumstances fees can be exempted or
deferred.
Parties will usually incur the legal costs of their own lawyers
preparing for and attending mediation.
ITO Mediation can arrange and pay for the cost of a translator but such
costs are shared by both parties involved.
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