Mediation

What is mediation?
Why use mediation?
What cases are suitable for mediation?
How do I start a mediation?
How do I contact a mediator?
Where are mediations held?
How much does mediation cost?
How do I prepare for mediation?
The preliminary conference
What do I do at mediation?
Further queries

What is mediation?

Mediation is a meeting between disputing parties with the aim of negotiating an outcome acceptable to each party.

At the mediation, the parties will:

·                     Identify the issues in the dispute;

·                     Identify each party's interests at stake in the dispute;

·                     Consider options;

·                     Negotiate with one another; and

·                     Try to reach an agreement.

The mediator is a neutral person who assists the parties to discuss the issues and negotiate the outcome. He or she does not impose a solution on the parties, but facilitates the discussion and helps to identify options. The parties remain in control of the process at all times and there is no obligation to reach agreement.

Why use mediation?

Costs

Resolving a dispute through mediation is generally much less expensive than going to court.

Flexible results

The parties can discuss options and agree on an outcome that suits them. Many of the outcomes reached at mediation cannot be made by a Court. For example, a Court can only interpret what a contract means. It cannot help to renegotiate the contract if both parties decide that is necessary. This means you can provide for commercial considerations and end up with better outcomes.

Speed

An agreement achieved through mediation is generally achieved more quickly than if the parties had gone to court.

Privacy and confidentiality

All mediation is conducted entirely in private and is confidential. This can be an especially important consideration in family disputes, or in commercial matters where the parties do not wish information to be made available to the public.

Survival of relationships

Mediation can help to maintain the relationship between the parties after a dispute, because agreement is reached through consensual discussion and is usually reached earlier than if a case went to trial. Often the relationship between the parties is significantly damaged if the matter goes to court.

Commercial sense

It makes commercial sense to use a process that lets you control the timing, cost and outcome of the dispute.

What cases are suitable for mediation?

Mediation is suitable for all non-criminal cases where the parties are committed to reaching agreement. Cases in which the parties want an early and amicable solution are particularly appropriate.

How do I start a mediation?

You can:

• Talk to a lawyer; or
• Approach the other party directly and then contact a mediator.

If you don't have a lawyer you can find one by:

• Contacting the Law Society;
• Enquiring at the Legal Services Commission;
• Asking friends to recommend one to you;
• Looking in the Yellow Pages under the Solicitors Listing;
• Enquiring at the nearest Community Legal Service Office.

How do I contact a Mediator?

The Law Society has a list of people who are qualified mediators and can conduct mediations, subject to their availability. Certain mediators have particular areas of expertise, so you may wish to choose a mediator who has experience in your type of dispute. You can contact a mediator by telephoning  the Law Society on 08 8229 0234 or e-mail mediation@lawsocietysa.asn.au.  Please advise in what area of law, or with what type of matter, you require assistance. You will be provided with the names of several mediators together with their contact details, charges and mediation experience.

Where are mediations held?

The place for the mediation is agreed between the parties and the mediator. The Law Society has facilities available for mediation. There are also several community mediation centres. Mediators will usually suggest somewhere neutral where you can meet comfortably without interruption.

How much does mediation cost?

A mediator charges by the hour or the day, and the charges vary between mediators. The standard rates for mediators range between $1,500 and $3,500 per day.

There may also be costs associated with the venue hire. The parties normally divide the cost of the mediator and the venue equally between them.

Each party normally pays their own lawyer's fees, if they have a lawyer.

How do I prepare for mediation?

Before the mediation, you should:

• Identify the issues you want to discuss at the mediation;

• Prepare a brief opening statement covering your concerns;

• If possible, obtain legal advice about the likely outcome of court trial, if the matter were to go to court. If you can identify your best possible outcome and worst possible outcome, it will provide a framework for your negotiations and help you to evaluate options;

• Look for other ways to achieve the result you want;

• Be prepared to approach the mediation with an open mind rather than a list of demands.

The Preliminary Conference

A preliminary conference will normally be held between the parties and the mediator before the mediation. The purpose of this conference is for the mediator to explain the process that will occur at the mediation and the parties will usually sign an agreement to mediate. The parties and the mediator will decide the preliminary steps that need to be taken and agree on a timetable for the completion of those steps.

What do I do at the mediation?

• At the mediation, you should try to:
• State your case clearly and succinctly;
• Listen to the other side.
• Look for options that can benefit both sides.
• Comply with the mediator's directions about what to do next in the mediation process.
• Be willing to co-operate and prepared to reach an agreement.

Further queries

If you have any further queries about what is involved in mediation, contact the Law Society at mediation@lawsocietysa.asn.au