Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute.
The key difference between mediation and litigation is that the mediator does not force or decide the outcome for the parties. Another important distinction is that costs are generally minimised with mediation and the parties retain control of the outcome themselves.
It is the primary responsibility of a mediator to facilitate agreement between the parties prior to (and instead of) running the legal action. This avoids the expense and uncertainty of litigation and can achieve results not possible in a litigated result. Mediation has been enormously successful in Sydney, as a result.
It is not the job of the Mediator to be more expert in the arguments than the parties themselves. That is the job of their legal representatives to both understand their case and to be able to articulate it.
I practice as a mediator in a variety of areas of law, but the main areas for mediation are as follows:
- (i) Building and Construction Law
- (ii) Succession law
- (iii) Defamation and Commercial law
- (vi) Family law
Once I am engaged as mediator for the dispute, there is a distinct process that should be followed. William is a strong believer in building rapport and trust with all parties.
A good mediator should achieve the following prior to conducting the mediation:
- allow parties to ask questions or raise concerns prior to mediation occurring;
- give parties "homework" with the provision of key documents to assist the mediation
A clear process will be followed in preparation for the mediation (the process below).
Process to be followed prior to the Mediation
- Directions: Once retained, William will determine, with the assistance of the parties, where necessary, will provide the parties with appropriate directions in that regard. Those directions will include a timetable for the preparation of an agreed mediation bundle of documents and for the exchange of a mediation summary of the parties’ interests.
- Preliminary Conference: A preliminary conference is often useful to discuss preparatory activities and attend to organisational matters. A preliminary conference can be convened at a time and venue to suit.
- Agreed Bundle of Documents: The parties should be aware that in preparation for the mediation, William will read thoroughly all documents that are provided to him.
- Position Papers: The parties will be encouraged to exchange and provide to the mediator a summary of their respective interests. Wherever possible, the parties should focus on matters which could provide a common platform for a negotiated outcome.
- Professional Advice: The parties should ensure that they obtain their professional advice that may be relevant to any proposed settlement before the mediation.
- Authority to Settle: It is critical that a person who has full authority to settle the dispute and to sign any necessary documentation to give effect to any settlement attend the mediation.
- Draft Settlement Documents: The parties should liaise and agree as to which of them shall carry primary responsibility for the preparation of a draft document(s) to be made available at the mediation and which can be used as a template to record any resolution reached.
- I do call for the key documents and a succinct summary of each that party’s case.
- I am an accredited as a mediator under the National Mediator Accreditation Scheme (NMAS) See the NSW Bar Association BARADR Website: https://nswbar.asn.au/briefing-barristers/adr/baradr
- I am also a member of the Supreme Court’s mediator panels.
- Mediation is increasingly prominent features of modern litigation.