What is mediation?
Mediation is defined in the Act as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”
Because mediation is voluntary, a person cannot be required to use mediation to resolve their dispute. All of the parties must agree to use mediation to try to resolve the dispute.
Even when the parties have agreed to use mediation, it remains voluntary. The parties are free to decide at any time not to continue.
Only the parties decide if, when and how to resolve their dispute in mediation. The terms of any resolution agreement reached between the parties only become binding on them when setting down in writing and signed by them. The Act provides that, once a settlement agreement is concluded and signed by the parties in mediation, it can be enforced like any other binding contract.
Advantages of mediation
Mediation offers several possible advantages for resolving a dispute.
- Engagement between the parties is facilitated by a neutral, independent third party called the mediator.
- The parties decide if, when and how their dispute is resolved.
- The parties may avoid some or all of the risk and cost associated with court action.
- All communications between the parties and the mediator are protected by confidentiality. Because these communications happen with a view to resolving a dispute, they may not be used or referred to elsewhere if matters are not finally resolved in the mediation.
- Mediation is a flexible, informal process that can be organised at short notice. This may allow the parties to conclude a resolution agreement in a short time and much faster than is usually possible by court action.
- Resolution using mediation can allow parties to continue or resume their previously successful contractual or other relationship.
A mediator’s obligations
The Act requires mediators not to act if they cannot do so impartially or have some other conflict of interest.
Mediators must provide details of their mediator qualifications, training, experience and continuing professional education as mediators. They must provide a copy of the code of conduct to which they subscribe.
Mediators must conclude the mediation expeditiously, they must remind parties of their right to take independent legal or other advice before signing a settlement agreement and their fees must be reasonable and transparent.
The mediator may make suggestions about how a dispute may be resolved only when requested to do so by all parties.
Source: Law Society
