Frequently Asked Questions about Mediation
What are my options to resolve a dispute?
The options available to you if you need to resolve a dispute vary in the time, cost and effort that you will need to invest:
Direct discussion - One can try to discuss the matter privately with the other person(s) concerned to reach a mutually acceptable resolution without going further. If that is not possible, or does not work, you will likely need to seek some professional assistance to reach a resolution.
Private mediation - The next quickest and cheapest option is to approach a private mediation practice, such as Dispute Resolution Victoria, where both parties wish to mediate their dispute in a safe, confidential forum, with the assistance of an NMAS accredited, neutral dispute resolution professional.
Engage a law firm - A third option is to engage a lawyer to represent you and negotiate on your behalf either directly with the other person or via their legal representative. This option may cost you substantially more than a private mediation process and could much longer as well.
Go to Court - Fourthly, you have the option of taking the matter to a Court of appropriate jurisdiction. Consider not only the mandatory legal costs disclosure given to you by your lawyer under the Legal Professional Uniform Law for their professional costs and disbursements, but also your potential exposure to the other sides' legal costs at Court.
It may be the case that a Court will refuse to list a matter for trial until mediation is completed. By that stage, legal costs on both sides can be very high. It makes real commercial sense to consider private mediation, early and often, as a means of getting to the real issues in dispute in the most efficient, timely and effective manner possible in your civil or commercial dispute.
Resort to the public Courts for dispute resolution is increasingly considered the absolute last resort option, due to the high cost of legal proceedings, delay, proceedings being on the public record, and uncertainty as to the outcome.
Why has mediation become so popular?
The benefits of professional mediation compared to adversarial litigation in the public Courts are fast becoming more widely known. They include:
1. Save time and legal costs - do not underestimate the time and monetary cost of litigation or let pride get in the way of reason. Open-ended legal costs and uncertainty of outcome can be avoided with timely and effective mediation. Don't learn the hard way.
2. Mediation facilitates problem-solving - unlike adversarial litigation, mediation is confidential, interest-based and problem-solving by its nature and processes.
3. Preserving continuing relationships - mutually agreed outcomes can preserve continuing personal, professional and commercial ties.
4. Parties have control over the process - Mediated outcomes are fashioned by the parties with the guidance of an impartial dispute resolution expert - not imposed by a Court.
5. Outcomes can be very flexible - Mediated outcomes can be more lateral and flexible than any Court-imposed relief or outcome.
6. Mediation is private and confidential - unlike public Court outcomes that are open and on the public record.
What is the process?
The mediation process will usually involve the following five steps:
1. The mediator will start by explaining the process they will be using and then ask everyone to agree to some basic ground rules of personal conduct during mediation.
2. The mediator will give each person an opportunity to make an opening statement about what it is they want to discuss with the other person.
3. The mediator will draw up an agenda, or list of mutually agreed items, for discussion and then help the participants to discuss these items and potential options and proposals in a safe, respectful and fair manner.
4. The mediator may take time to talk privately and confidentially to the participants separately and/or give the them time to talk to their lawyers or support people.
5. If the participants can come to an agreement, the mediator will help them decide if, or how, they want it recorded.
Settling out of Court vs the cost of going to Court: Negotiating in the shadow of the law - by Harvard Law School
When disputes arise, negotiators face the difficult question of whether to try to reach a settlement on their own or hand decision-making power over to a judge, a jury, or an arbitrator.
Parties often benefit from settling their disputes before going to court. Yet disputants and their lawyers typically overlook the potential costs of a legal battle.
Settling out of court vs. the costs of going to Court
Settling out of court can eliminate any number of barriers to negotiation. The drawbacks of involving lawyers in your dispute and preparing for litigation can be considerable.
1. Transaction costs.
Parties can incur significant transaction costs from a looming lawsuit, including legal fees and the loss of their precious time. In fact, one or both sides to a dispute may try to persuade the other party to make concessions by deliberately attempting to increase the other party’s transaction costs—for instance, by requesting mountains of documents and presenting long lists of questions that take many billable hours to answer. Your own legal team may also have financial incentives to drag out a discovery process to pad its fees—to your disadvantage. And when estimating likely legal fees, disputants often fail to factor in the time and expense of further litigation if they end up in court and the “loser” decides to appeal the court’s decision.
2. A lack of cooperation.
The widespread misconception that the best lawyers are aggressive and rigid, and never collaborative or accommodating can lead clients to hold back their legal team from exploring creative (and money-saving) tradeoffs. For lawyers, a client’s expectations of toughness can become a self-fulfilling prophecy. It’s not uncommon for both sides in a dispute to begin puffing up their positions and claims and to give the impression that they won’t back down under any circumstances. In this environment, parties unfortunately tend to perceive concessions and compromise as signs of weakness and vulnerability rather than as potential value-creating moves, write the authors of Beyond Winning.
3. Damaged relationships.
Negotiators often fail to thoroughly consider the effects of legal action on their relationships with the other side and with other interested parties.
“Disputes may strain relationships,” writes Harvard Business School professor Deepak Malhotra in a past Negotiation Briefings article, “but litigation tends to destroy them.”
To take an obvious example, a divorcing couple that is able to negotiate a child-custody arrangement with the help of a neutral mediator may be more likely to build a productive post-divorce relationship, to the benefit of themselves and their children, than a couple that hires two “sharks” to attack each other’s character in court.
These drawbacks of litigation aside, it can sometimes be the best means of helping you meet a particular set of goals.
When litigation is the best option
Though negotiation (whether conducted through lawyers, mediators, or on your own) should lead to better outcomes for disputants in most cases, litigation may be preferable in the following situations, writes Jeffrey R. Seul in a chapter in The Handbook of Dispute Resolution (Jossey-Bass, 2005):
An uncooperative counterpart. If your adversary stalls or refuses to negotiate in good faith, you might turn the case over to courts to ensure that it will eventually be resolved (though not necessarily in your favor). Court-ordered discovery will also legally compel a recalcitrant counterpart to supply information he might have held back during a dispute-resolution process.
A desire for openness and publicity. If you want to draw attention to your counterpart’s behavior or clear your name, you might choose to pursue a litigation process in which the outcome may be publicized, instead of private negotiations.
Deterring false charges. If you have been the repeated victim of false claims and opportunism, taking such cases to court may (if you win) deter others from targeting you in the future.
Settling legal questions. If deciding a dispute according to established legal norms or potentially setting new precedents is important to you, you might prefer to give decision-making authority to the courts.
Settling out of court
The following guidelines can help you settle out of court and reach creative, mutually beneficial resolutions to your disputes, with or without lawyers at the table.
1. Make sure the process is perceived to be fair.
Before tackling your dispute jointly, negotiate key elements of the process with your counterpart, such as how you will choose experts and whether lawyers will be involved in negotiations. Doing so will increase the odds that both sides will view the final outcome as unbiased and fair. In addition, you might suggest that you jointly hire a professional mediator to lead the settlement process instead of turning the process over to your lawyers.
2. Identify interests and tradeoffs.
Even when we’re determined to settle out of court, the win-lose format of a looming litigation can encourage us to view negotiation as a battle. Unfortunately, the desire to prove we’re right can distract us from pursuing our underlying interests. It can also propel us all the way up the courthouse steps if our adversary refuses to meet our needs.
Just as in business dealmaking, you can expand the pie of value in a dispute by opening up about your key interests and preferences, which can help you identify potential tradeoffs. Revisit the following questions often during the dispute-resolution process:
What are my true underlying interests?
How can I best achieve them?
How much am I willing to pay just to be able to say that I won?
It’s also important to encourage the other party to open up about her interests and to keep those interests in mind as you negotiate.
3. Insist on decision analysis.
Lawyers are often hesitant to quantify their clients’ odds of winning court cases, write Mnookin, Peppet, and Tulumello in Beyond Winning. Yet you need a thorough analysis of the risks and opportunities of litigation to make informed predictions and decisions about how to move forward. Any lawyers you hire should be well versed in decision-analysis tools such as decision trees and dependency diagrams and ready to use them to help improve the quality of your decisions.
4. Reduce discovery costs.
Disputants who are considering a lawsuit often become trapped in a lengthy and time-consuming discovery process that includes searching through reams of data and conducting depositions. You should be able to reduce these expenses by negotiating a low-cost exchange of essential information with your counterpart, write the Beyond Winning authors. When you can keep costs down, both sides win.
What should I look for in a mediator?
Your mediator must be qualified and registered.
Your mediator should have the nationally recognized NMAS qualification and be on the national NMAS register : https://msb.org.au/mediators
Such mediators also carry professional indemnity insurance as a requirement of their registration.
Serious mediation training and substantive dispute resolution expertise are critical, as is keen analytical skill. Self-awareness, emotional intelligence, problem-solving, lateral thinking, patience and diplomacy are keys strengths of a good mediator.
Your mediator should conduct themselves such that your interests are truly understood, enabling the mediator to effectively reframe problems and float creative, workable solutions to the parties.
Your mediator should also ideally possess sufficient experience to understand the perspectives of the disputing parties, engage and build a professional rapport with them, and be genuine in their desire to help them reach an efficient and effective resolution to their dispute, knowing what may occur if the process fails to yield a satisfactory outcome for the parties.
Do mediators give legal advice?
No, mediators never give advice as they are independent and impartial in the mediation process.
Similarly, the mediator’s role is not about finding the truth or deciding who is right and who is wrong and they do not ever decide the matter for the participants.
The role of the mediator is to assist the participants to safely and fairly discuss the issues in dispute with particular emphasis on giving each person the opportunity to share what is important to them and why, and to respectfully listen to the needs and perspectives of the other person.
Can I bring my lawyer to mediation?
Mediation participants may bring along a solicitor.
If a mediation participant brings along their solicitor to a mediation, they will be responsible for the cost of doing as a separate personal or business expense in addition to the costs of the mediation.
As all discussions are and remain confidential at mediation, solicitors are not essential participants in the mediation conference process to speak for their client.
Some people elect to call upon their lawyer to answer any specific queries by phone during a mediation or to give instructions to draw up documents relating to an agreement once a mediation has successfully concluded.
Can I present evidence at mediation?
Yes, but consider what your objective is in doing so.
The mediation process is problem-solving and future-focused - aimed at resolving a dispute so that the participants can move forward with certainty.
Mediation is not about picking over events of the past or detailing who said what to whom and the mediator’s role is not about finding the truth or declaring who is right and who is wrong. As such, printouts of past email or text conversations are generally not required and may not ultimately be helpful to resolving the real issues in dispute.
In some types of mediations, evidence may be helpful to substantiate your proposals, such as when a person is seeking to recover costs or other damages. This may take the form of contracts, invoices or receipts.
What happens at a mediation conference?
In most cases the only people present in the room during a mediation are the participants in the dispute and the mediator.
As stated, earlier, mediation participants may bring along an adult support person and/or a solicitor but only with the consent of the other participant/s.
As support people are not active participants in the mediation process, they will not be offered the opportunity to speak.
Sometimes support people wait outside the mediation room to be available to provide emotional support during breaks.
Mediation is typically able to resolve all issues in a single day.
If the mediation process is slowed down by participants that are reluctant to be flexible and consider alternatives to their ideal outcomes, the process may take longer or possibly yield no resolution.
Must I accept a settlement offer?
If you have received an offer to settle your dispute and are undecided whether to accept it or to push on to a court trial, you will benefit from obtaining legal advice.
You will need to get a very clear understanding of the most likely outcome you could expect from a court process and the cost in terms of time and money to get there.
This information will provide you with a yardstick to evaluate your current offer against.
You will need to weigh up whether the time and financial costs of going to court are more or less beneficial to you than accepting the current offer.
You may also consider utilizing the legal advice you have gained to make a counteroffer and keep the out-of-court negotiations going a little longer with the aim of improving the settlement conditions without going to court.
You can do this either via lawyer negotiations or have considerably less expense by doing it in a mediation process.
What happens after a settlement?
If you reach agreements with the other participants in the mediation process, Terms of Settlement are typically draw up to reflect the outcome.
Where any legal advice or Court documents are required to be prepared (such as Minutes of Consent Orders for filing with Court), the parties are directed to legal advisors as the mediator does not represent either party nor provides legal advice.