Mediation

Mediation: what is it?*

Mediation is a process in which the participants, with the assistance of a mediator, identify the issues in dispute and then discuss, explore and develop options for resolution. This process often results in agreement.
 

During mediation

Usually, at the commencement of the mediation, the mediator will explain the process including the general ground rules. These include that:
  • the participants will communicate in a respectful manner;
  • the mediation is confidential, primarily as this enables full and frank discussion and in some instances a separate confidentiality agreement may be signed;
  • the mediator facilitates the process but doesn't offer legal advice.
Each participant gives a short summary of the facts in the dispute and has an opportunity to respond to the other participant's summary. The mediator assists the participants to identify the key issues in dispute, to discuss the issues and develop and explore options for resolution.
 
The mediator may talk to the participants in private to monitor progress, clarify the issues and discuss settlement options. Private sessions are also confidential and the mediator will not disclose anything said in those sessions without consent. Participants can request to speak to the mediator privately and confidentially at any time. The participants may continue to meet with the mediator privately or they may come back together to explore options to resolve the dispute.
 
If the participants reach agreement on any aspect of the matter, the mediator assists the participants to record the agreement before the mediation concludes.
 

Benefits of mediation

The benefits of mediation include the fact that it:
  • gives the participants an early opportunity to settle the dispute saving costs, time and stress;
  • can achieve solutions which better suit the participants' interests;
  • avoids the risk of litigation;
  • can give the participants greater control over the process so that, in effect, the participants are able to influence the outcome. This means that participants are often more satisfied with a resolution achieved through mediation;
  • is often more conducive to maintaining ongoing relationships as it encourages effective communication between participants.
* This content is based on the South Australian Magistrates Court Practice Direction which, as a member of the Law Society's Alternative Dispute Resolution Committee, the writer assisted in drafting.
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