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  • Gabriella Ferraro

Mediation - Things to Know

The main elements of mediation are:

1. That it is voluntary in the sense that the parties participate of their own free will.

2. A neutral third party assists the parties towards a settlement.

3. The process is non-binding unless an agreement is reached.

4. The process is private, confidential and conducted without prejudice to any legal proceedings.

What is mediation?

Mediation is a process of negotiation where disputing parties come together to discuss matters with a neutral third person (also known as a mediator) to identify and explore options for a resolution.

The mediator will not make a decision, but rather help the parties to reach their own agreement.

Mediation can be court ordered, voluntarily agreed upon between the parties or arranged through entities such as the Victorian Small Business Commission or the Domestic Building Dispute Resolution Victoria.

Why mediate?

Mediation is an effective way to resolve an issue and has a high success rate. It is an economical solution, avoiding costly litigation and the associated business disruptions.

Mediation sessions are generally informal, but structured, and conducted in a meeting room with all parties seated around a table. Meetings can also involve each party in a separate room for high tension matters.

Benefits of mediation are wide reaching. Some of these benefits include:

  • time efficient;

  • cost effective;

  • flexible;

  • less stressful;

  • confidential meetings;

  • satisfactory outcomes; and

  • finality in all matters.

How to prepare for your mediation

It is essential that you attend the mediation in person, even if you intend to have legal or other representation with you.

It is helpful to prepare a short statement which tells your side of the story. Avoid getting stuck on minor issues. Think about the outcome you would like to achieve, and what you are willing to compromise to reach a resolution.

Consider having a support person, legal or professional representation, to either attend with you, or be available to talk with you by telephone during the mediation. It is not always necessary to have legal representation during the mediation process, however some parties in mediation feel more comfortable if they are accompanied by a lawyer or another representative. In some instances, legal representation at mediation is necessary.

What happens if agreement is reached

If agreement is reached, a terms of settlement document is drafted, considered and signed by the parties. This is the end of the mediation process. It is important to know that the signed terms of settlement agreement is a binding document and can be enforced by judicial or tribunal proceedings if necessary.

What happens if an agreement is not reached

If agreement is not reached at mediation, and the matter is brought:

  • Through the court system, the matter will be referred back to the court for final hearing;

  • Through the Victorian Small Business Commission or the Domestic Building Dispute Resolution Victoria, the parties will receive a certificate and may wish to commence proceedings at the Victorian Civil and Administrative Tribunal (VCAT).

  • By the parties before any court proceeding is on foot, the parties may decide to bring Court proceedings in the relevant jurisdiction.

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