Mediation FAQs
Click a Question to hide/show the Answer.
- Q: What kind of disputes can be mediated?
- A: Unless a clear case exists for litigation, the possibilities for applying mediation are almost unlimited, and include commercial contracts, intellectual property matters, workplace disputes, industrial relations, contract disputes, equal opportunity issues, family law issues and health sector disputes.
- Q: If litigation has already started, can I still go to mediation?
- A: Yes. In fact many mediations take place while litigation is on foot. Anything that is said in the mediation cannot be used in court proceedings. The parties are required to mediate in good faith. Any settlement that occurs would usually involve discontinuing the legal proceedings.
- Q: What about confidentiality?
- A: Confidentiality is paramount in mediation. All parties sign an agreement to mediate. One of the conditions is that all that is discussed remains confidential. Any agreement reached is also confidential, unless the parties, by agreement, wish to make a public announcement of some kind.
- Q: Can I tape the mediation?
- A: For reasons of confidentiality, we do not support taping mediation or using laptops or other electronic storage devices during the mediation process. Any notes taken by the mediator during the process are destroyed immediately after the mediation. The only record of a mediation would be a signed agreement, copies of which would be given to the parties.
- Q: Is a mediation agreement binding?
- A: Yes, once signed by both or all parties it is a legally binding contract.
- Q: Are mediations private?
- A: Absolutely. Mediation is a confidential process and any settlement reached is also confidential, unless the parties decide otherwise.
- Q: Is mediation better for me than litigation?
- A: That's for you to decide! It will depend upon your particular case, and you will need to weigh up the advantages of each avenue to resolving a dispute. Take into account the time, costs, confidentiality and likelihood of a resolution that enables progress for both parties.
- Q: I will have to work with the disputing party again. Will mediation assist?
- A: Definitely. One of the benefits of mediation, in contrast to litigation, is that it enables the parties to develop workable solutions to their problems together. This helps to maintain and preserve relationships into the future, making it possible for the parties to continue to work together. Also, since any settlement is confidential, this provides a commercial advantage in that the dispute is not ventilated publicly in the courts.
- Q: Do I have to reach agreement?
- A: No, mediation is a voluntary process, but your mediator will encourage and support the parties to reach a liveable resolution to their issues. If agreement cannot be reached, this does not mean that the mediation has failed, but other dispute resolution methods, such as litigation, may be more appropriate.
- Q: Can the mediator offer advice?
- A: The mediator is there to guide the parties through the process. While he/she may be a qualified lawyer, in the mediator's role he/she is not able to give the parties legal advice or offer opinions. The goal is to assist the parties to find workable solutions for themselves. The parties can, of course, take advice from their lawyers or representatives if they choose, before or during the mediation.
- Q: Can my lawyer attend?
- A: We find that the parties themselves are best placed to resolve their issues, but we are happy to have representatives attend if the parties require. At the preliminary conference we will clarify the respective roles of the parties.
- Q: What if we want the mediator to decide, or tell us what to do?
- A: The mediator will not decide for the parties. A separate process called arbitration may be more suitable for disputes where an external decision is required. If you are interested in arbitration services please contact us for more information.
- Q: I don't want to divulge all the details of my matter to the other side. Can I still mediate?
- A: Mediation requires the parties to take part in good faith. This means being prepared to talk openly about the issues and propose solutions. If you have information that is relevant but which you do not want to share with the other party this can be raised with the mediator in a private session. If it's something that would help in the resolution the mediator will probably encourage you to tell the other party, but she will not tell them herself.
- Q: I work for a government agency or authority. They want to know what happens in the mediation. Do I have to tell them?
- A: If the matter has been referred to mediation by the agency, the mediator will advise that the only information to be given to the agency will be whether the matter settled or not, unless the parties specifically wish to disclose some aspect of the settlement, for example if a policy change may flow from the settlement.
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