A process where a mediator who is an impartial third party facilitates the process where parties in conflict negotiate a mutually acceptable agreement.
The role of the Mediator
At the start of mediation, a mediator describes the process, discusses and clarifies that the process is confidential. A mediator usually sets guidelines or ground-rules to help guide the process, assists the discussion so it is fair and manages the interactions so that they are respectful. A mediator helps participants identify their needs and interests, explore alternatives, facilitates and supports communication and uses creative problem-solving techniques to enable the parties to reach their own agreement. A mediator does not give advice or opinion unless the participants request it as part of the agreement with the mediator. A mediator does not decide who is right or wrong, take sides, or make a decision about the outcome. It is the participants who decide the outcome.
How do you choose the Mediator?
You should engage a mediator who is nationally accredited with the Australian National Mediator Accreditation System. This ensures that the Mediator is trained and assessed and their accreditation is maintained.
Outcome of Mediation
- A solution is not imposed on a party, rather the parties have control over the way their dispute or difference is dealt with and the parties have control over the outcome.
- If all of the parties do not agree to the result, the dispute remains unresolved.
- Mediation can have the advantage of preserving ongoing relationships.
- Where each party consents to the result of the Mediation, the parties can enter into a the settlement agreement and this agreement can be legally binding.
Note, a mediator helps the parties to arrive at an agreed solution whereas an arbitration results in a decision by the arbitrator without the agreement of the parties.
Mediation through the Court Process
The Courts Mediation Program is designed to assist parties to resolve their legal dispute simply, quickly and cost-effectively. Rather than having a trial before a judge who will decide how the dispute is resolved, in mediation it is the parties who can reach a solution. Parties are not forced to mediate before commencing litigation. However, there are mandatory pre- litigation dispute resolution obligations in particular fields of law, such as family law, native title law, retail tenancy law, etc. Once litigation commences, a case manager will listen to both parties and will then decide whether to order the mediation. The Court may appoint a mediator (Court registrar or a judge), or the parties may agree to a private mediator. With a few exceptions, anything said or done, any communication, whether oral or written or any admission made in the course of attempting to settle a matter by court-ordered mediation is taken to be in confidence and is not admissible in any court proceedings before the court. This allows the parties to honestly and frankly discuss the dispute, what each wants to achieve and the options for settlement. If an agreement is reached at or after mediation, it can take effect immediately. If the parties wish, the agreement can also be embodied in an order of the court, which can be enforced by the court. Even if the dispute is not resolved, mediation can assist parties to clearly define the issues which need to be resolved at trial, reducing the time and expense of a trial.
Mediation in Franchise matters
The Franchising Code of Conduct (Franchise Code) sets out a clear process for the resolution of disputes between a franchisor and a franchisee. The Franchise Code requires that franchisors develop internal procedures for handling disputes with franchisees. This procedure must be set out in the franchise agreement and meet minimum standards set by the Franchise Code. The Franchise Code requires a party to first try to resolve the dispute with the other party by sending them a notice of dispute outlining:
- the nature of the dispute
- what action the complaining party thinks will settle the dispute
- what outcome the complaining party wants.
Once a Notice has been sent, the parties should then try to agree about how to resolve the dispute. Where the parties cannot agree on how to resolve the dispute within 3 weeks, either party may refer the matter to a mediator for mediation under a franchise agreement or the Franchise Code. If the parties cannot agree on who should be the mediator, either party may have a mediator appointed under the Franchise Code. The mediator can end the mediation if 30 days have elapsed after the day the mediation began and the dispute is not resolved, or on the request of either party. The Franchise Code states that each party must share the costs of mediation unless the parties can come to cost arrangement. Mediation costs are:
- The cost of the mediator.
- Cost to hire the venue.
- Cost of any additional input agreed by both parties to be necessary to conduct the mediation.
Parties to mediation can have legal representation at the mediation, however, this is not a requirement.
Mediation in Commercial Tenancy Matters
Under the Commercial Tenancy (Retail Shops) Agreements Act 1985, it is the role of the Small Business Commissioner to provide assistance to resolve disputes relating to retail shop leases. Both tenants and landlords can approach the Small Business Commissioner for assistance to resolve their dispute. The dispute resolution service is free. Unlike a court or tribunal, the Small Business Commissioner does not have powers to compel anyone to negotiate or cooperate and therefore cannot provide assistance if any party refuses to participate. The matter will follow a case management process, however, if parties are unable to resolve their dispute with intensive case management, the case manager may suggest the parties consider accessing the Small Business Commissioner subsidised mediation service. Parties may go directly to the State Administrative Tribunal for certain administrative or urgent matters.
If you would like assistance with mediation or if you have any queries, please contact MP Commercial Lawyers