Mediation is a dispute resolution process where parties to a dispute come together in a confidential and private forum facilitated by an unbiased, independent person, the mediator, to identify the disputed issues, develop options, consider alternatives, identify goals and endeavour to reach a self-determined resolution to their dispute.
Mediation can offer an efficient, cost effective and self-determined process to resolve disputes and is an alternative to for example, going to Court and having a Judge determine the outcome. The emphasis at a mediation is on reaching a compromise which both parties can live with in order to move forward.
Mediation offers parties flexibility, informality, timeliness, and affordability whilst providing parties with self-determination, an acknowledgment of their interests and encourages preserving relationships. Parties who mediate may feel more satisfied with the outcome than if they litigate their dispute as they can arrive at their own outcome in an efficient way and are therefore, less likely to continue to argue after a resolution is achieved.
Mediation can be voluntary, or court ordered. It can occur either before court proceedings have been commenced or after the commencement of court proceedings. Courts are increasingly requiring parties to attempt mediation prior to hearing the matter or making a final determination in a matter. Matters that involve farm debt, retail tenancies, family provision claims, and family law are examples of where parties are required by legislation to attempt mediation before litigation can commence. If mediation is court ordered parties must fulfill their requirement in engaging with mediation to acquire their section 60I certificate. Any agreement reached at a Mediation is not a legally binding decision unlike a court ordered decision which is legally binding. However, if one of the parties do not comply with the terms of the agreement, the other party may apply to the Court for an order to enforce the terms of the agreement.
There are different styles of mediation. The mediator will select the style of mediation to best suit the type of dispute, the circumstances and the relationship between the parties. The parties which may attend the mediation are the parties to the dispute (and their legal advisors if they have engaged any) and an impartial, independent third party, the mediator. The mediation process requires parties to identify the disputed issues, develop options, consider alternatives, identify goals and endeavour to reach an agreement. The mediation process is held on a confidential and ‘without prejudice’ basis, as far as the law permits which means that anything said during mediation cannot be used as evidence in court without your consent.
The mediator’s goal is to guide the parties through a structured process to assist them in reaching a self-determined resolution to their dispute. However, it is not the mediator’s role to act in an advisor or decision maker. The mediator leads the discussion and allows space for each party to be heard by the other side and to narrow the issues in the dispute between them. The mediator holds the parties to a respectable standard providing for a calm and safe environment to hold constructive conversations. Often the mediator will speak to each party separately to allow parties to speak freely to an impartial and objective third party. Nothing said to the mediator during the separate sessions will be shared with the other party and will be kept entirely confidential.
A mediator may undergo a pre-mediation intake process. If the parties are legally represented the mediator may meet with the parties and the parties’ solicitors. The intake process purpose is to ascertain whether the parties will be willing to engage in mediation and if mediation is suitable to them. During this process, the mediator will explore the parties’ ability to engage in constructive conflict resolution. The mediator must also uphold their duty of care, ensuring the safety of the parties during mediation and after. The mediator must also consider power imbalances in parties to consider whether mediation is suitable and manage any imbalances which may exist.
Our mediator, Madeline Klein is the founder and Principal Solicitor of Klein Legal providing dispute resolution services including litigation and mediation to the Sunshine Coast region and beyond.
Madeline completed a Bachelor of Business and Law degree and a Graduate Diploma of Legal Practice in 2013 and was admitted as a lawyer in the Supreme Court of Queensland and High Court of Australia in 2014.
Having completed the Nationally Accredited Mediator Training Program, Madeline is also a nationally accredited mediator.
Throughout Madeline’s practice, she has gained extensive knowledge and experience in resolving disputes across vast areas of law including building and construction, property and commercial, insolvency, defamation, intellectual property, employment and wills and estates. She also regularly represents clients in a wide range of matters at mediations and has over nine (9) years of experience at resolving disputes at the mediations.
If you would like to appoint Madeline as your mediator, contact us today.
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