Mediation is a confidential process in which a neutral third party, the Mediator, assists the parties to resolve their dispute by agreement. The Mediator does this by helping the parties to consider options they may not have thought of, and by broadening the parties’ perspectives of how to achieve each of their objectives. We only use mediators with a strong scientific and technological aptitude in order to maximise the probability that a solution will be found which is satisfactory for all parties to the dispute.
Because mediation requires the consent of all participants, the first step is to ensure that people understand what it is they are being asked to consent to. Think of mediation as a facilitated settlement negotiation where the parties don't have to face each other the whole time. By separating the parties and discussing their needs and objectives with them individually, the mediator is able to form a view of viable options that the parties initially would not concede to each other for fear that it is a sign of weakness. A mediator will encourage parties to devise and consider all commercially viable options in private sessions and will then assist the parties in joint sessions to 'workshop' those which the mediator suggests knowing that all parties privately regard them as viable. Whilst this is an oversimplification of the process, it explains why mediation so frequently achieves outcomes that all parties regard as successful. Importantly, mediation does NOT involve a 'ruling' imposed on the parties - the outcome has to be mutually agreed and made the subject of a binding settlement agreement.
A 'normal' mediation usually involves a preliminary conference of about an hour, submission to the mediator of very brief summaries (no more than 4 pages) of each party's position together with a selection of the most salient documents, and then a mediation a week or so later that rarely goes for more than one business day.
Mediation as a process costs significantly less than litigation and involves elapsed times as little as a week. Basically the parties equally share the costs of the mediator and the hearing room. Hearing rooms (including separate break-out rooms for private sessions with each party) range in cost from A$200 to A$400 per day in most Australian capital and regional cities. Our fees for a mediator range from $1,650 to $3,000 (inc. GST) per party per business day and this includes a preliminary conference of up to an hour and reading of the parties' submissions and documents. For highly specialised scientific or technical subject matter, or for more extensive preparation or reading time, we charge a premium of 10%. Please let us know the nature of your dispute, the number of parties, and the complexity of the subject matter and we will be more than happy to give you a fixed price quote for your mediation.
Once you have booked your mediation with us we will ask each of the parties to sign our Mediation Agreement. This is to make sure that the parties formally and bona fide commit to the mediation process, agree to pay our fees, agree to keep confidential everything that occurs during the mediation process, and other logistical and formal matters. Download our standard Mediation Agreement template from DocStoc:
Many mediators promise absolute confidentiality but we advise people that this is impossible. By signing our standard Mediation Agreement all participants in our mediations are contractually bound to keep confidential what occurs during the mediation and also what they learn from other parties during the mediation, including the contents of documents. The parties also have to agree not to subpoena the mediator to disclose anything that the mediator was told in confidence at a mediation. Most courts in Australia and elsewhere respect the objectives of mediation enough to enforce these contractual restraints, but there may be a case where a judge regards the public interest as requiring disclosure in certain cases. These will be rare indeed but we think it important not to overstate the degree of confidentiality that is available. Mediation proceedings are treated as 'without prejudice' negotiations and details of what occurred and what parties have said cannot be tendered in evidence as admissions. The settlement agreement is nevertheless enforceable in the same way that any other contract is enforceable.
Most people are not familiar with mediation. Unless there are special circumstances which require mediation to proceed without delay, we always like to have a short preliminary conference with parties at least a week before the mediation. At this session we explain the mediation process to people in more detail, obtain a commitment to participate in a spirit of goodwill, ensure that all issues in dispute have been identified for discussion, and agree on who will actually attend the mediation. Our preference is for the Chief Executive or divisional C level executive of commercial organisations to participate as this ensures that the overall objectives and constraints of the party are best reflected in the negotiations and outcomes.
Mediation and negotiation training
Training in negotiation skills is something we encourage. There are many fine courses offered by providers such as Resolution Institute and the Australian Disputes Centre. Make sure that any course you do satisfies the requirements of the National Mediator Accreditation System (NMAS).ArgyStar.com is a division of Jeapna Pty Limited, an Australian corporation