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Mediation Process 101: How to Achieve Agreement for Disputes Quickly & Easily
16 August, 2023 | Peter Smith
It is estimated that 99% of disputes that go to Mediation are resolved, but what is actually involved in going to mediation?
Round Table discussion is not mediation
Many people are of the misunderstanding that mediation just consists of a round table discussion held in person or by “zoom” or “teams” intended to find common ground to settle a dispute.
This is not mediation.
What is mediation?
Mediation is a formal process facilitated by a mediator who has training and experience in mediation as a formal dispute resolution process. The advantages of mediation are:
- A significant saving in legal fees and court costs.
- A 99% success rate.
What does the mediation process involve?
Appointment of the mediator
The parties will need to agree on the mediator. There is an organisation called the Resolution Institute that has a list of mediators and their areas of expertise. The Resolution Institute will help you appoint a mediator from their list.
Many mediators act independently of official organisations, but should have completed accredited mediation training. Smith & Partners’ Mediators are members of the Resolution Institute and have long experience in mediation and were trained as mediators by a predecessor of the Resolution Institute called LEADR which stands for lawyers engaged in dispute resolution.
The mediator will request a summary of the facts in dispute, and if lawyers have been involved for the parties in trying to resolve the dispute, the mediator will also request a summary of the legal issues.
The mediator will then prepare a mediation agreement which must be signed by all the parties to the mediation. The mediation agreement will summarise the facts and if necessary, the law that is in dispute, and will make the parties agree that the mediation process that they are about to engage in is confidential as will be the outcome.
Appointment of time and place of the mediation hearing
Mediations can be in person or conducted virtually using video-conferencing such as Zoom or Teams.
Location of mediation:
It is important that the place where the mediation is to be held has the necessary facilities to hold a mediation which often can last a whole day – 6-8 hours. The mediation room should be comfortable. Refreshments and food should be available at appropriate times. It is important that in addition to the mediation room that there are break out rooms for what is called caucusing (see below).
Who should attend the mediation?
The people who attend should be the parties to the dispute, their lawyers and any important professional witnesses such as valuers, accountants, and loss adjusters or assessors.
At the commencement of the mediation the mediator will instruct the parties as to the process, the fact that the mediator is independent and unbiased and the fact that the process is utterly confidential so that the parties can speak freely without anything that they say being able to be used as evidence in court.
Laying out the facts
The mediator will give each party free and uninterrupted time to set out their view of the facts and the law.
The next stage of the mediation will be to issue identification where the mediator assists the parties with identifying the actual issues that are in dispute.
Following the period of issue identification, the mediator will spend time identifying with the parties, together, the various settlement opportunities. This is the point where the experience of the mediator is important because some settlement opportunities require innovative thinking that the parties involved in the “heat of the dispute” have not previously considered.
Identifying the difference or differences between the parties in terms of the settlement opportunities
Most disputes boil down to disputes over money or assets. In exploring the differences between the parties, the mediator will often identify that it is a sum of money either in itself or represented in the value of an asset that represents the difference between the parties to the dispute.
This involves the parties breaking out into rooms where the mediator talks on a confidential basis with each of the parties and identifies the strengths and weaknesses in their argument and gets them thinking strategically about how to settle the matter and what would be involved if the matter was not settled.
The mediator will then bring the parties together to discuss the proposed settlement and if necessary, caucus as many times as required to broker a settlement agreement.
Drafting and signing the Settlement Agreement
No mediation is complete without the settlement agreement being drafted and signed by the parties before they leave the mediation. The lawyers for the parties together with the mediator should draft the agreement. If the parties are not represented by lawyers, then the mediator will help the parties draft the agreement and have it signed.
The settlement agreement once it is signed is binding on the parties and is enforceable at law, and the parties must complete the items that are agreed to be completed in the settlement agreement including payment of any sum of money or transfer of property.
It is helpful, if lawyers are involved, that a draft of the settlement agreement be prepared before the commencement of the mediation with all of the standard “boilerplate” included so that only a schedule of the terms of the actual settlement need to be drafted or written up before the settlement agreement is signed.
Using the mediation process, it is often said, that 99% of disputes are resolved.
This is the experience of Smith and Partners.
- Costs of mediation vary depending on the experience, skills and qualifications of the mediator.
- As a large suburban practice Smith and Partners believes that people should have access to justice and that mediation is an important component of the justice system.
- Smith and Partners’ costs are $2,500 plus GST (per half day) including mediation facilities. These costs are payable before the mediation starts and are normally shared 50/50 by the parties.
Areas of dispute that Smith and Partners commonly mediate are:
- commercial and company disputes,
- disputes over debts,
- employment disputes,
- construction and building disputes, and
- matrimonial property disputes.
Imagine the relief of swift, amicable resolutions, where costly legal battles and prolonged stress become a thing of the past. As an expert mediator, Peter and the team of mediators at Smith and Partners have the experience and expertise to guide you through even the most complex disputes. The clock is ticking, and your proactive steps can make all the difference.
Contact Peter Smith now to get started
Phone: 09 837 6882