Australian Mediation Defined
The Australian Mediation Association considers the term mediator to be inclusive of a broad range of conflict management and resolution endeavors. Activities such as conciliation, consulting, facilitation, consensus building, conducting public dialogues, system design, restorative justice initiatives, education and capacity building to mitigate or prevent disputes and conflict are all encompassed within a sweeping definition of mediator in the context of Alternative Dispute Resolution.
What are the advantages of using ADR?
Efficient & Cost Effective – Alternative Dispute Resolution is more cost-effective when compared to traditional litigation. Most innovative dispute resolution processes take less time than trial. Most non-litigative processes can operate outside the court system. A dispute need not wait its turn on an over-crowded court docket.
Control over Outcome – ADR can reduce risk and exposure to unanticipated results when compared to adversarial trial and litigation proceedings. Parties control the outcome of non-binding procedures. In binding procedures parties agree to specific rules that impact the outcome. This allows everyone to come prepared, and can eliminate potential surprises.
Confidentiality/ Privacy – Because most litigation is public, many parties prefer the privacy afforded by ADR processes. Establishing a pro-active system for managing claims has helped many organisations avoid the risks and costs associated with unnecessary publicity and litigation.
Potential for Preserving Relationships – Many parties desire to maintain a relationship after a dispute is resolved. Creative use of ADR processes can reduce the adversarial or contentious actions often associated with litigation.
What is the Mediator’s Role?
A mediator is an impartial third party who facilitates communication between or among two or more parties in dispute. The mediator does not take sides or make decisions for the parties. The mediator helps to create a safe environment where the parties can discuss issues in an open and respectful manner. The mediator helps the parties to explore and understand the issues in dispute, develop alternatives, make informed decisions and work toward reaching a practical and mutually-satisfying outcome.
What types of cases are suitable for Mediation?
Virtually any commercial and civil dispute is appropriate for mediation including:
Manufacturer – supplier disputes, commercial lease, franchise, workplace conflict, wrongful dismissal, professional negligence, construction, contract, estates, corporate commercial, environmental, real property, class actions, mass tort, business, civil, landlord/tenant, real estate, employment, Insurance, personal injury and many others…
Will I need legal representation in Mediation?
Because mediation is a voluntary process legal representation is not necessary for most mediations. However, some individuals feel more comfortable with a lawyer’s assistance. Some parties also have their lawyer review settlement agreements before they sign.
How long will Mediation take?
Mediation takes considerably less time than litigation. However, this time varies depending on the complexity of the dispute and the amount of parties involved. The average mediation lasts only six hours, but can easily extend to several weeks due to the factors previously mentioned.
Should I use Mediation if I am already involved in a lawsuit?
The litigating parties or the court, can agree to allow a mediation session to proceed if a court action is already in progress. If the parities are able to settle the case through mediation the case can be dismissed.
What are the chances that my case will settle in Mediation?
Statistically over 85% of cases settle during the mediation process.
Are Mediation settlements binding?
Yes. A signed settlement agreement is as enforceable as any other contractual agreement. Some Family Law mediation agreements must be lodged with a court to be recognised.
Will I lose my chance to file a lawsuit if I participate in Mediation?
No. Mediation is a voluntary and confidential process. If your mediation session does not result in a settlement and you have every right to pursue legal remedies through litigation.
Are Mediation services available by phone or over the Internet?
Our dispute resolution services are flexible and responsive. We have taken every step to ensure that your experience with our service is seamless and efficient. If you require teleconferencing, video-conferencing, or web-based capabilities we have the appropriate solutions to meet your needs. Our extensive internal resources and strategic alliances are ready to provide you with excellent customer services.
What are the qualifications to be a Mediator?
The AMA only selects those Mediators who are recognized for their expertise and standing in the legal and mediation communities. We only chose those professionals who maintain the highest degree of professionalism and integrity. All of our mediators have extensive mediation training and exceed the mediation training requirements set forth by their local jurisdictions.
Does mediation replace the need for legal advice?
No. Mediation is not a substitute for legal advice. In most mediation situations, it is advisable that parties consult with a lawyer before and during the mediation process. It is also advisable that parties have a lawyer review any written agreement before it is signed.
What happens if the parties don’t reach an Agreement?
The issues after a mediation session have become more defined and clearer, so as to allow the parties to focus on what is important without the peripheral distraction of side issues. Usually, most issues are resolved through mediation, or at worst a majority of them, leaving the parties to pursue other remedies with their outstanding concerns.
Above FAQ is sourced from the AMA website.