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About Mediation
Back to Top Australia uses the “adversarial legal system” in the conduct of its civil law. This means that there are two sides: the “Complainant”, the person who commences civil legal proceedings and the “Defendant”, the person against whom legal proceedings are brought.
Even before legal proceedings are issued through the courts, the lawyers representing their clients adopt an adversarial position in arguing their respective client’s position on a matter.
In doing so, many other issues are often raised, thus having the effect of widening the dispute. The lawyers for the Complainant frequently and progressively search for as many other possible grievances as can be found (or constructed) which may add to the weight of the Complainant’s position and correspondingly the Defendant’s lawyers may react similarly.
The results are often that disputes become unnecessarily complicated, unnecessarily slow to resolve and of course, as most people know, unnecessarily expensive.
Mediation tends to narrow the matters in dispute, encourages the parties to consider dismissing unimportant and irrelevant issues. The Mediator helps the parties to concentrate on finding solutions to the key issues.
Mediators try to keep up the pace of mediation proceedings with the objective of reaching a prompt resolution. With co-operative parties, the process can be fast, effective and therefore costs only a fraction of legal and Court fees.
Yes. The Mediator’s role is non-judgemental and independent. The focus is to help the parties reach agreement. The Mediator may describe the matter as a fair minded person who has all of the facts. That information sometimes assists people to see the dispute from a neutral position. However a Mediator doesn’t pass judgement or try to press a party into accepting an offer.
It is recommended that a dispute resolution agreement be drafted and signed by each of the parties after they have received independent legal advice that the document accurately contains all of the terms of the settlement to which they have agreed in principle.
If the negotiation through mediation fails, then one of the parties (or both of them) may wish to commence legal proceedings if they want the matter resolved in a Court of Law or allow the matter to remain unresolved. This means that they are then in the same position as they were prior to participating in mediation.
Firstly, the parties share the cost of mediation. Mediation will only commence after the parties have signed a letter appointing the Mediator. The letter of appointment will contain the hourly rate of the mediation charges, the various charges for other services, and the payment terms.
Many people, having experienced a Mediated resolution of their disputes, consider that apart from being far less expensive, it was faster and a much less stressful experience than using the legal system. In some situations, it can even restore the original quality of the relationship between the parties before the dispute occurred. This is of particular value in the mediation of family business disputes. Together with all of the other benefits of a successful dispute mediation, the cost saving is one of the frequently most appreciated features of the process.
Firstly, it is common for people in dispute to be distracted from the creative management of their businesses, which can result in their failure.
Secondly, a dispute can be destructive in other ways, such as destroying hard earned custom or attracting unfair and bad publicity.
Mediation has made possible the continuation of business relationships after a dispute has been resolved or even while mediation is in progress.
All of the foregoing can be effectively minimised because the process of Mediation can be completed more quickly than litigation, the latter of which tends to take a long time to reach a conclusion (hence the high cost of litigation).
Once again, the low cost of mediation is commonly a significant major saving to the enterprise in all respects
There is an epidemic of work place bullying occurring in Australia. In July 2011, the government of the state of Victoria passed a new law as a result of the suicide of a nineteen year old young café worker, Brodie Panlock, caused by her having been severely bullied in the workplace. Called the “Brodie Law”, it strengthened the ability of the police and the courts to deal with bullying with the full force of the criminal (and as a consequence, the civil) legal system. Other Australian states are expected to follow with similar legislation. A successful prosecution of the Victorian law imposes heavy fines with a maximum penalty of ten years imprisonment Employers are now at risk if they do not keep their employees’ work places free of the misery and harassment of bullying. Recent cases have cost companies such as the Commonwealth Bank and Woolworths extensive bad publicity and in 2011, Pacific Brands Limited was being sued for nine million dollars for allegations of bullying by one of its managers. Corporate disinterest is likely to soon expose businesses to severe penalties.1
The use of mediation can nip bullying in the bud. Employee Code of Conduct and Performance documentation can be modified to provide employees with procedures for early mediation facilities to resolve bullying issues by use of mediation services arranged by the employer. We recommend to businesses that the mediation be handled by independent mediators, such as Mediation Australia, to avoid claims of biased management responses, especially when supervisors or managers are accused of bullying. Early attention to incidents of bullying have many advantages: the avoidance of expensive law suits, the retention of valuable employees who would otherwise seek employment elsewhere (thus saving the cost of lost valuable and sometimes irreplaceable expertise) and the maintenance of a happier, productive and supportive work environment culture. Mediation Australia can be retained initially at no charge to provide employers with suggested wording for inclusion in their Employee Code Of Conduct guidance materials.
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