Mediation is a form of assisted negotiation where a neutral third person helps parties to a dispute reach an agreement without the need to go to court.
In facilitative mediation, the mediator does not make any judgement or offer any opinion on the merits of the case, although they will help the participants to reality test their proposals.
In some cases the mediator can be ‘evaluative’ if this is agreed by both parties. In evaluative mediation the mediator is still a neutral third person but they will give a professional opinion about the participants positions and may make recommendations. The participants retain the right and responsibility of deciding what type of agreement they will accept.
There are many forms of mediation for different types of disputes which are each explained in more detail on the attached pages.
- Civil, Commercial and Consumer
- Family Dispute Resolution (FDR)
- Restorative Justice (RJ)
Mediations are usually a confidential process, as opposed to court hearings which are usually in public and participating in mediation does not affect the participants rights in subsequent court procedures if an agreement is not reached.
Mediation is a relaxed and flexible process with the rules about how it will work agreed between the mediator and participants. The mediators job is to help facilitate communication and work with the participants to find the best way forward to reaching a settlement.
Most mediations will settle on the day (75%) with a further 11% of those that do not settle on the day settling soon afterwards. (UK figures)
Mediations are substantially cheaper and quicker than pursuing a matter through the courts and creative solutions can be arrived at that a court could not order. It is also a much less stressful process for the participants and can help to preserve relationships whether business or personal.
Most legislation in Australia encourages alternative dispute resolution (mediation is the most common form of Alternative Dispute Resolution) before going to court and in some cases requires it.