Prepared by Andrew Henderson and Ioanna Moliviatis
Mediation is a form of dispute resolution where parties who are in dispute attempt to come to a resolution through the help of an independent mediator in a mediation setting.[1] Mediation is also referred to as alternative dispute resolution because at its core it is a process that presents an opportunity to resolve an ongoing issue other than going to court. This process is beneficial in most cases and seems to be increasingly common in small claims, construction, disputes between business partners and divorce or child custody issues.[2] Further, this is being used before commencing litigation, in order to save on costs and avoid the lengthy timeframes[3] that come with court proceedings. When matters proceed to court the decision of a judge often only benefits one party. Whereas mediation aims to ensure that both parties benefit from the result even if the result means coming to a middle ground.
Mediation can occur through one of two ways either voluntarily where both parties enter the process consensually. Otherwise this can be mandated by the court in an already existing dispute with or without consent of either party involved.[4] In instances where mediation is agreed to by both parties a mediator of their choosing is present.[5] The responsibilities of the mediator are as follows they must be unbiased, willing to assist the parties and ultimately help reach a goal which is deemed a mutually acceptable outcome. The mediator cannot force a party to accept an offer and anything that is discussed in mediation stays confidential and can’t be used in court.
Adequate preparation for mediation is essential. Prior to commencing a mediation, one must ensure that all supporting evidence is reviewed in light of the issue.[6] Further, a party must consider what the opposition may use as their supporting evidence to discredit or argue any claims. Ensure that you are well informed of all issues pertaining to the dispute whilst also detailing your concerns. Importantly establish what you are seeking and what you are prepared to accept as settlement. [7]
Although mediation is being used more often than not as a first step for resolving disputes. There are arguably disadvantages to mediation such as the costs of this process being expensive by way of discovery, legal fees, interpreters and expert witnesses. In most instances parties never leave a mediation fully satisfied with their outcomes. A party may be unwilling to participate in negotiation therefore leaving the dispute unresolved and with costs of mediation wasted.[8] Whilst mediation has its risks it can also have its benefits such as quicker resolutions, preserving and improving relationships, more flexibility and importantly confidentiality.
If you seek further information on the area of mediation we encourage you to contact the team at Interpret Legal.
[1] Courts SA, ‘Mediation’ (2012) <http://www.courts.sa.gov.au/RepresentYourself/CivilClaims/Pages/Mediation.aspx>.
[2] Resolution Institute, ‘Mediation’ (2021) < https://www.resolution.institute/resolving-disputes/mediation>.
[3] Australian Government, ‘Alternative dispute resolution’ < https://www.ag.gov.au/legal-system/alternative-dispute-resolution>.
[4] Courts SA, ‘Mediation’ (2012) <http://www.courts.sa.gov.au/RepresentYourself/CivilClaims/Pages/Mediation.aspx>.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Courts SA, ‘Mediation’ (2012) <http://www.courts.sa.gov.au/RepresentYourself/CivilClaims/Pages/Mediation.aspx>.
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