Mediation
Lawyers Sydney

Mediation is a structured negotiation or alternative dispute resolution process. The mediation lawyers help guide clients through the process and a neutral third party, known as a mediator, assists them to identify and assess options, facilitate a discussion between the parties involved, and negotiate an agreement to resolve their dispute before having to go to court. The mediation process is an alternative to a judge imposing a decision on the parties.

Mediation is a procedure for dispute resolution in which the parties discuss their conflicts with the assistance of a trained impartial third person (or persons) who assist them in reaching a resolution.

According to the Federal Court of Australia, all cases are eligible to be referred to mediation, regardless of their complexity or number of parties. In saying this, mediation requires all parties to act cooperatively. Indications that your dispute may be suited to the mediation process, as outlined by the Federal Court of Australia, includes:

“a willingness to participate in mediation”

“the possibility that a judge’s decision will not end the dispute”

“the need for parties to find a way to preserve their relationship”

“the existence of non-monetary factors and”

“the potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision”

The purpose of mediation is to assist the parties involved to work with a neutral third party to resolve disputes and to agree on a solution. If the parties come to an agreement, they will be expected to adhere to the agreement. However, if an agreement is not reached, a hearing or trial will be set.

In Australia, most courts have statutory power to refer cases to mediation and other forms of alternative dispute resolution. Cases can be referred with or without the consent of the parties, and in some cases – such as family dispute resolution – the legislation requires the parties involved to engage in the mediation process before a claim is filed or put before a judge.

In Australia, mediation is required in the case of family dispute resolution, but in cases where mediation is not required, it can offer many benefits over a trial by a judge.

Benefits of mediation include:

• Less Stressful – the formality of court can be stressful or intimidating, whereas the mediation process for dispute resolution is less formal and can be less stressful for all parties involved.
• Privacy – the mediation process is supported by a high level of privacy. The judge is not privy to the contents of mediation and, if the case goes to trial, cannot be used against either party in most cases. It is best to discuss mediation confidentiality with your lawyers prior to engaging in the process.
• Reduces Time to Resolution – dispute resolution can usually be achieved more quickly through mediation, as it requires both parties actively seeking a mutually beneficial solution, than through a trial.
• Cost-Effective Solution  – a successful dispute resolution through mediation can mean avoiding the costs of preparing and running a trial, in which the unsuccessful party may be ordered by the judge to pay part or all of the successful party’s legal costs. In this way, mediation can often be the best financial solution for everyone involved.
• Can Be Mutually Beneficial – the goal of mediation for dispute resolution is for all parties to decide and agree on the outcome, which often results in both parties feeling satisfied by the result and more likely to comply with the agreement. Also, in most cases, the agreement can only be modified with the agreement of all parties.

For the mediation process, Judicial Registrars will usually act as mediators, as they are trained and accredited by the Court under the Federal Court Mediator Accreditation Scheme (FCMAS).

The Court became a Recognised Mediator Accreditation Body in September 2015 and implemented the FCMAS, which incorporates the National Mediator Accreditation Standards

Parties may agree to use an external mediator at their own expense.

There are several things you can do to prepare for mediation and improve the experience of the dispute resolution process. For a better mediation experience, you can prepare the following:

• the course of conflicts between parties and the issues being disputed
• priorities and interests for a successful dispute resolution
• a clear communication for your mediation lawyer, the mediator, and the other party of these issues and priorities
• what you can say or compromises you are willing to make in order to assist dispute resolution
• any costs to date or costs that may arise and how much might be recovered
• the possible outcomes of a trial, including damages in a dollar value and any limits on the Court to award these

Before commencing mediation, it is the role of the mediator to consider and provide expert advice on what the best process for mediating disputes will be based on information provided by the parties. 

At the beginning of the mediation session, the process will be explained and followed up with a discussion of the issues or conflicts to be resolved. 

During the mediation session, the mediator’s job is to keep negotiations moving forward and to, hopefully, resolve the dispute/s. To achieve this they may ask questions of the parties, facilitate discussion about possible solutions, provide alternative perspectives on issues, and generate options for consideration. 

The mediator may request to meet with the parties separately, as well as meeting as a group, and it is entirely possible that multiple mediation sessions may be needed to resolve the conflict or dispute.

There are two primary outcomes of mediation: an agreement is reached or the parties are unable to reach an agreement. 

If a dispute is resolved and an agreement is reached, whether in part or in full, the details of that agreement will usually be recorded and signed by all parties before the end of mediation. The judge will be notified by the mediator that the matter is settled, though they do not provide any details about the mediation discussions or terms of the agreement without the consent of all parties involved. The agreement is then finalised and the parties will usually formally notify the Court to close the case.

If a dispute is not settled through mediation, then the parties will need to prepare for trial and the mediator will notify the judge that the matter is not settled. Again, the contents of the mediation will not be shared. 

It is worth noting as well that mediating a dispute does not mean there will be a delay in the case being heard by a judge.

In the case of family law matters, dispute resolution, and mediation, most cases are able to be resolved through the mediation process, with up to 70% of cases resulting in successful parenting arrangements and 40% of cases regarding division of assets are successfully settled without recourse to family court.

Most family lawyers who are private providers of family dispute resolution have an hourly rate. Depending on their experience, rates can range between $100 to $450 per hour. 

If a dispute resolution can be achieved through mediation, it will cost significantly less than resolving a matter in court. According to the Government initiative, Family Relationships Online, the cost will depend on your provider and may even be free for eligible people (not through private providers), while community-based family law services have a standard fee policy based on income levels and capacity to pay. You should let your family dispute resolution service provider know if you are on a low income or experiencing financial difficulties. 

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