11 THINGS YOU SHOULD KNOW ABOUT MEDIATIONS
1. What is a mediation and what issues can it be used to resolve?
Although mediations take many different configurations, in each case they are basically at their core a conference between two parties in an attempt to resolve (settle) issues of disagreement which are either the subject of live court proceedings or about to be. As for the issues which are capable of being put through the process of mediation, they are basically as broad as any issue which is capable of being put through any type of court under any law which gives to a court the power to impose a decision. Generally though the cases which are most often put through mediation are:
- Family law disputes relating to either division of assets and/or the care arrangements for children following a relationship break down;
- Personal injury compensation claims;
- Disputes between beneficiaries to the estates of deceased persons;
- The full range of commercial disputes.
Issues however which generally are not capable of resolution through mediation are anything that might constitute a crime and/or any issue which can only be resolved by one party or the other actually committing a crime.
2. Are there any different models for mediations? ? Just like no two people are the same, no two disputes are ever exactly the same and consequently the mediation service that might be brought in to try to resolve the disputes always has a degree of individuality interweaved into it. That said, in a broad sense, there are four different models that can be adopted:
Solicitor inclusive/exclusive: As the name suggests, each of the parties can agree to either have Solicitors present with them to provide assistance and limited advocacy on their behalf, or to attend the mediation just with the Mediator with no Lawyers in company at all. Although there is obvious additional expense for each side to bring their own Lawyers, having the right type of Lawyer at mediations is usually highly beneficial towards achieving a settlement.
Third umpire: In this model, the Mediator conducts the mediation with a standing invitation to weigh in with his or her own opinion on what might be the ultimate court conclusion to the particular issues. This “third opinion”is usually very helpful in achieving settlements as the mediator has no reason to favour one side over the other.
Conduit only: Here the Mediator is merely acting as a communication tool between both parties to make sure that there is no misunderstandings as to the messages being conveyed back and forth. The Mediator is either not invited or potentially not qualified to weigh in with a third opinion, but nonetheless can prove very useful in assisting/ensuring each party stays focussed on the issues and does not become consumed by the emotions of the moment or distracted by off-topic points of aggravation.
Child inclusive mediation: This is very rare, but occasionally in mediations on children’s issues in Family Law cases, there might be one Mediator that works with the parents and that same Mediator (who will need to be a Social Worker or a Psychologist in this instance) or another professionally qualified person with the same credentials will interview the children independently of the parents and then report back to the parents on how the children view whatever issue the parents are in contest about.
3. How effective are mediations in achieving settlements? ? There is no central register that keeps tabs on how many litigants in dispute situations are submitting to mediations and successfully achieving settlements through that medium however, most Mediators (and the Solicitors who regularly participate in mediation) will say that around 85% of cases which are submitted to mediation settle at mediation and therefore do not go any further. “Settlement” of a case of course doesn’t necessarily mean that both parties have walked away happy with whatever compromise was achieved and in fact there is a very well-known saying when it comes to negotiations that a good deal is best defined by a situation where both parties feel that they have been ripped off!
4. Can a party be compelled to go to mediation? ? Yes, practically every court process that is currently available for the resolution of issues under the Australian court system has at one stage or another, an obligation placed upon the parties for them to either stop the court process and take the dispute off for attempted resolution via mediation, or in some instances (for example, children’s issues in Family Law cases) actually has a requirement that mediation be undertaken first before any court processes are started at all. In many cases therefore, both of the parties voluntarily agree to submit their dispute to resolution through mediation and in doing so, also agree on the logistics as to which Mediator is to be chosen, the venue and form in which the mediation is to take place and who is to pay for it. Where the logistics cannot be worked out voluntarily, the court has the power to compel parties to go to mediation and Order the parties to make a genuine effort to try and resolve the dispute in that way. As can be imagined however, mediations generally work far more effectively where both parties have voluntarily committed to the exercise, rather than situations where one of the parties has had to be dragged into the exercise involuntarily.
5. How does it work and are there different configurations? ? There are basically three different ways that mediations are usually conducted on the day. These are:
Face to Face: In this instance, both of the parties, with or without their accompanying Lawyers and the Mediator all remain in the one room and conduct all of the negotiations in open conference, although obviously there will be occasions were one side or another might retire to consider, or otherwise formulate an offer confidentially.
Shuttle: In this configuration generally the parties will only spend a short time together in a common room at the beginning of the mediation where they are stepped through on introductory/procedural matters, but then spend the rest of the mediation in separate rooms with the Mediator then “shuttling” between the two locations to convey offers backwards and forwards and to assist each party individually with their deliberations.
Phone link: Here the parties will not even be in the same building and instead will conduct the mediation entirely by phone. Commonly, the Mediator will be in one location and each of the parties in their own separate locations and the mediation takes place in part with everyone on the one line and then moves to a shuttle style format with the Mediator speaking by telephone exclusively to one side and then over to the other.
Generally speaking, phone link mediations are less efficient/effective but are adopted of necessity where the parties are separated by large distances or there is high conflict. Face to face mediations are usually also not favoured as parties tend to be less flexible towards compromise when they are eyeballing each other across the table. Shuttle configurations however do work extremely well in most situations and with this configuration there is of course always the option to move the matter back to face to face at one or various stages through the mediation if the Mediator considers this to be helpful.
6. Are there any rules surrounding mediations? ? The rules that cover mediations are usually drawn from a combination of rules of court, the terms of a Mediation Agreement to be signed by the parties, and some “house-keeping” rules which are usually given out verbally just before the mediation begins. Although there is obvious scope for variation, in most mediations the rules really can be summarised into three basic points:
Each side is asked to commit to an understanding that when one side is speaking, the other side listens, takes notes and refrains from responding until invited to do so by the Mediator;
There is to be no intimidation or harassment exerted by one side or over the other; and
Everything that is said in the mediations is confidential, meaning that nothing of what is said or done in the mediation can subsequently be used as evidence in any court case.
The reasons behind the first two rules described above are no doubt self-evident. As for confidentiality, the rule is in place so as to permit both parties the confidence of being able to engage robustly in negotiations on the day without fear that anything they do or say can subsequently be used as evidence against them in any court battles. An important exception however to the confidentiality rule is that if there is anything that is said or done which suggests that either of the parties at risk of bodily harm or there is a risk of some form of abuse to a child who is in the care of either of them, then in those circumstances the Mediator and, if they are present, both Solicitors who attend the mediation are actually duty bound to report this to the appropriate authorities.
7. How long should parties allow for mediations? ? How long a mediation might take to resolve issues in dispute obviously will be influenced heavily by the number of issues and/or their gravity. Generally speaking though, it would be unlikely that mediation would resolve inside half a day and in many mediations, an entire day or the best part of a day will be required.
8. Is there any preparation work that should be done before the mediation occurs? ? If the mediation is to occur by way of court Order then typically, the Orders will also stipulate certain tasks which need to be completed by certain dates before the mediation takes place. When the mediation is occurring voluntarily, best practice would generally indicate that those same sorts of tasks should be completed, but there is no actual obligation on parties to do so unless each side has agreed informally on the process beforehand.
Generally speaking though, for a mediation to be given its best prospects of success, it would be highly beneficial if the parties have completed at least three core tasks beforehand:
Each has prepared a comprehensive statement which sets out their take on the issues in dispute, the facts which drive those issues and their position as to the result that they would seek to obtain in conclusion;
That there be full disclosure exchanged between both sides as to all documents and information that each has in their possession, custody or control relevant to the issues in dispute and as part of that exercise, if there are issues that would benefit from independent third party appraisal (such as the valuation of property, a business, motor vehicles, equipment or superannuation interests etc) then that exercise also is completed jointly between the parties beforehand; and
That each party prepares written submissions to be provided to the Mediator beforehand which spells out (roughly) where they sit in terms of the outcome that they would seek to obtain from their mediation and the basis upon which they believe that outcome to be justified with those submissions then provided to the Mediator at least a few days before the mediation and at the same time exchanged with the other party.
9. If agreement is reached at the mediation, is that binding? ? Any agreement reached at a mediation will not be automatically binding between the parties, but what is typically done is a “Heads of Agreement” document is signed up and each of the parties, commit to doing the tasks necessary to perfect that document into a fully binding and enforceable arrangement such as a consent order or a binding out of court settlement agreement. The Heads of Agreement document might in some circumstances be left as a general statement of the transactions or arrangements upon which the parties have agreed with the detail to be ironed out later or it might be drafted up with sufficient sophistication that it itself can then become the Consent Order or binding out of court settlement document with little, to no extra work, requiring to be done after the day of the mediation. Obviously, a document which is closest to the final court Order/Agreement would be preferred, but in some cases this is simply not achievable/practical on the day due to the necessity for some further technical input or thought into the precise wording which is to be used in the final document that settles the dispute.
10. Is there any way that the outcome achieved from the conclusion of the mediation process can be made instantaneously binding? ? The short answer is no, unless the parties agree ahead of time that the process is not to be run as a “mediation“, but rather as an “arbitration“. If the negotiations are to be conducted under the setting of an arbitration, then the parties will have actually agreed ahead of time that whatever decision is given by the Mediator (who in this instance will actually be referred to as an Arbitrator) will be binding upon them in the same way that would have occurred had they actually put the case before the court. There are some limited circumstances where an arbitration might be a good idea, but as can be imagined in most cases, the parties prefer the flexibility of at least being able to back out of the mediation if they feel that the process was flawed or the opinions (if any) expressed by the Mediator were incorrect.
11. If there are a multitude of issues to be resolved between the parties, is it wise to package all of them up for resolution in one mediation session on one day, or alternatively, compartmentalise and divide them into separate mediation sessions? ? The answer to this question really depends on the extent, nature and gravity of the issues which are in dispute, but generally speaking, it would only be recommended to split mediations into separate sessions in the rare situation where independent resolution of some issues will have absolutely no impact on how settlement of the remaining issues might go. A cautionary warning here however is that in any mediation, a very large amount of any focus is often required to deal with what might even be issues which are at the more simple end of the range and consequently if the mediation session is “excessively loaded up” with a large range of issues then in doing so, the parties certainly do diminish their prospects of being able to reach settlement/agreement on all of the issues, or indeed any of them. For example in some Family Law cases, the parties are in dispute both in regards to the care arrangements for the children as well as the division of their property. Whilst to some extent separate and discrete from each other, there is nonetheless a symbiotic relationship between each of them and thus where both sets of issues remain “live“, each would generally be put into the same mediation session for resolution. In cases such as this however, it is very common that the parties struggle to reach agreement on any issues because time and energy burnt up dealing for example on children’s issues at the top of the day, is then time and energy that is not available to the parties when they turn their focus to property division, with the result the parties often “hit the wall“, cannot take the negotiations any further, withdraw their consent to any issues that were resolved earlier in the day and often exit the mediation without any issues being resolved at all. In these situations therefore, best practice generally would be for the parties to try and resolve as many of the issues as possible between them before the day of the mediation and then leave only the remaining issues which could not be resolved as the issues to be taken into the mediation process itself.