Mediation FAQ

What is mediation?

Mediation is a process in which parties involved in a conflict voluntarily participate in a joint effort to reach an agreement that settles the dispute.

A neutral third party, the mediator, facilitates the communication between the parties, addresses the barriers to resolution and helps fashion a settlement in the form of a written agreement which all the parties are invited to sign.

How does mediation differ from arbitration or court proceedings ?

In mediation the parties have more control of the process and the outcome.

Mediators are process experts, not decision-makers. A mediator will help parties to reach agreement, but cannot impose or dictate a settlement.

Martin Walsh is an experienced Clinical Psychologist and Senior Manager (MBA) and Mediator (LEADR) who brings superior interpersonal and professional skills (critical listening, understanding, secondary gain, personal motivations clarifying, conceptualising the problem/s and its contingencies, and other skills) to the Mediation process to assist parties to reach an agreement.

Is there a role for my solicitor ?

Your solicitor can play an important role by advising you, clarifying legal issues, and helping to draw up agreements. At Walsh and Associates Mediation we are accustomed to working closely with parties and their solicitors to further the shared goal of resolution of a potentially legal matter i.e. work injury, separating couples eager to avoid the Family Court or interested in ending the legal action in the Family Court in favour of mediation.

Does the Mediator receive a percentage of the settlement?

No. Mediators are paid for a whole session i.e. a whole afternoon session or a whole morning session, or are paid an hourly fee: the fee is agreed by both parties before mediation starts and is almost always considerably less expensive than legal fees.

If we reach a settlement, is it legally binding?

The agreement that results form the mediation process is not legally binding but, depending on the issue, both parties (lets say an employer and their staff member, or a separating husband and wife) can approach a solicitor and have the matter converted to a contract. This depends on the nature of the conflict: yes, for example in some work injury disputes and no in most neighbour disputes. Mediation generally closes with a signed agreement. The parties, by mutual agreement, may take that signed agreement and seek legal advise to convert that agreement into a contract or other legal document outlining a formal settlement and release agreement.

How long will Mediation take ?

Several variables affect whether mediation should be structured to take place in half a day, or several sessions over a period of a week or so, or more sessions over a longer period.

Some of the factors we consider when suggesting a schedule of mediation include:

  • The parties’ tolerance for each other;
  • Their willingness to listen;
  • Their need to express themselves;
  • What needs to be expressed;
  • How long standing and entrenched the conflict is;
  • The complexity of the issues;
  • The type of outcomes one or both parties initially want;
  • ……………..

Written agreements

Simple, usually with some key points can have a commitment to return to communication and negotiation (or to re-start mediation) if the written agreement proves to throw up issues or generates unforeseen barriers to progress.

The Role of the Mediator what does a mediator do ?

Mediators are highly-skilled people from a variety of professional backgrounds, such as law and the social sciences. They are trained in mediation and in resolving disputes. The expertise of mediators allows for a diverse range of disputes to be dealt with.

 

The mediators can either work alone or with another mediator. They do not give legal or other psychological advice but will explore general principles that apply to couples who are separating.

The mediators are impartial, even-handed and neutral and they control the process, not the content that is discussed, and they maintain the confidentiality of the process. They are solution and future-focused in

helping the parties resolve their dispute. The mediators ensure that everybody agrees to the decisions being made. No one is forced to agree to anything unless they want to.

What can participants expect?

Mediation is a voluntary process, where decisions made are not legally binding. Everyone gets the opportunity to express his or her own point of view and is free to talk about issues of concern, with everyone present.

Participants must be willing to follow the larger process of meeting the mediator, exploring issues, meeting individually with the mediator and with the other party (unless restraining orders are in place, such as in family mediation or there is another overriding reason).

Participants must be prepared to follow the process of mediation, listen to the other party and be genuinely willing to negotiate (not compromise) and commit to reaching a solution.

Benefits of mediating a dispute:

  • Saves money and delays, because mediation is cheaper and quicker than the Court process.
  • Identifies areas and views in common (which are generally more than the parties realize)
  • Promotes cooperation and improves communication that can enhance an ongoing relationship which
  • Assists parenting and other relationships.
  • Provides a structure in which future disputes can be resolved more ..
  • Control in the decision-making process; no imposed decisions.
  • Generally less stressful or traumatic than court proceedings.
  • People are less likely to breach agreements they have made themselves and they have agreed to

Solicitor’s letter| Taking court action

Although a particular dispute may be resolved successfully through the courts in terms of who wins and what changes i.e. a tree is has branches lopped or trimmed (or whatever the grievance is) the cost may not be worth the taking legal action and relationship between neighbours may be damaged. Is there a time when you will need the cooperation of your neighbour ? They are very unlikely to even consider helping you or cooperation g with you if you have dragged them to court.

Australian Law society in your state.

South Australia

Alternatives to Mediation:

  • Do nothing.
  • Continue the conflict.
  • Seek the assistance of friends or work colleagues in resolving the dispute.
  • Seek Arbitration, which is a less formal legal process to resolve the dispute.
  • Instruct lawyers to negotiate agreements on your behalf.
  • Commence court proceedings.
  • Resolve the issues yourselves, without professional assistance.
  • If you want to make an appointment to see a mediator or find out more about mediation to resolve a dispute you have, contact your local branch of Relationships Australia.

Even if a mediation does not result in the parties reaching a binding agreement, the process will almost always have given the parties a clearer insight into the dispute, and often makes subsequent “without prejudice” settlement negotiations easier. And if all else fails the last resort option of going to Court is still available.

If you decide to mediate your dispute, and once a mediator has been chosen, all parties and the mediator will be given a mediation agreement to sign. This agreement covers issues such as how confidentiality will be maintained, payment of the mediator, and a release which the parties give to the mediator in relation to taking legal action against him or her.

Comparison with other professions

A mediator who was a professional in another sphere before coming to mediation has the back ground of

Being registered as a professional with their registering board (like, say, a solicitor, psychologist or teacher, but unlike, say, a counsellor or social worker) binds the registered professional to their profession’s code of ethics and the registering board’s investigative powers offering you greater quality intervention and back up …..

What is conciliation?

Conciliation is a term for collaborative problem solving that is often used interchangeably with mediation. It is usually the preferred term in certain contexts, such as in health. In some instances, it can imply that the ‘conciliator’ will provide additional solutions of their own when the process becomes stuck.

Conciliation is an assertive, rights-focussed process that fundamentally aims to enable the complainant to exercise his or her rights in law. Where it is used in disputes about access for disabled people to goods and services, it aims to secure a resolution in response to a particular incident of alleged discrimination which is satisfactory to the complainant.

The conciliation process encourages those involved to meet in a single, one-off meeting with the help of an impartial third party – the conciliator. This voluntary meeting allows both parties to:

  • voice their feelings
  • share their experiences
  • learn about the other’s point of view
  • find a mutually acceptable way forward.

If an acceptable resolution is not found, or if a provider refuses to become involved in the conciliation process, then the complainant still has access to the courts in an attempt to enforce their rights.