Frequently asked questions – Mediation
When is mediation compulsory?
Mediation is a voluntary process agreed between the parties – no party can force another party to mediate. However many courts and tribunals may order you to mediate – such an order is compulsory. The Family Court requires compulsory mediation in custody/parenting matters.
How does a mediator charge?
Most mediators charge an hourly rate which varies depending on their experience as a mediator, their experience as a solicitor, the area of law governing the dispute and the regional area of practice.
Like any other service you can approach a mediator to negotiate their hourly rate or a lump sum fee.
Who arranges the meetings?
The best way to arrange a mediation is for you to see a solicitor to be given some basic legal advice concerning the dispute. Then either your solicitor or you can approach the mediator directly and discuss costs, the venue, who will attend, documentation to be provided, pre-mediation meetings and availability for the mediation.
Where can I find a mediator?
You can find a Queensland Law Society Nationally Accredited Mediator quickly by using the find an approved mediator service on this website or by contacting our Dispute Management Centre and asking for a referral.
Mediators are able to be accredited with the Queensland Law Society under the National Mediator Accreditation scheme which requires them to comply with the Australian National Mediator Approval and Practice Standards 2007 (the Standards). The Standards impose a high level of training, continuing education, mediator experience and discipline on its members.
How do I prepare for mediation?
Matters to address in preparation include:
- Understanding the process which will be followed.
- Identify your needs, rights and responsibilities.
- Prepare your opening statement.
- Obtain legal advice about what factors would be considered by the court including the worst, best and possible outcomes of your dispute.
- Look for other ways to achieve your desired outcome.
- Consider the likely reaction and wants of the other party and ways to overcome their objections and concerns.
- Be prepared to approach the mediation with an open mind rather than a list of demands.
It is common in complex disputes for a meeting to be held before the mediation to assist all the parties prepare for the mediation and to establish a timetable for the exchange of documentation. You will be asked to sign a mediation agreement with the mediator and the other side before the mediation starts.
What is my role at the mediation?
State your case clearly and succinctly. Listen to the other side - if your dispute goes to court the judge might accept the other side's version.
Look for options that can benefit both sides and comply with the mediator's directions about what to do next in the process. Be willing to co-operate and be prepared to reach an agreement. No outcome will be imposed on you.
What is the role of the mediator?
The mediator acts as an impartial third party who will guide and direct discussion between the parties to help them settle a dispute. The mediator will not give legal advice or decide who is right or wrong.
What are private meetings during the mediation?
Private meetings are used for a number of reasons by the mediator. These include giving the parties a break from the tension, a chance to give confidential information to the mediator or to consider offers from the other side.
Private meetings can happen at any time during the mediation and there may be more than one. Anyone present can ask for a private meeting. Some people become worried when the other side requests a private meeting with the mediator, but it is a normal part of the mediation process.
What do you do when you reach an agreement?
It is important to try to arrive at an agreement that either resolves the dispute or agrees on a further course of action to resolve the dispute. If possible, this agreement should be written down and photocopied so you can take away your own copy. Where no agreement has been reached it is helpful to agree on the issues that need to be resolved, or agree on the future process to follow, such as obtaining reports or valuations.
Where possible the mediator will attempt to bring you together before finalising the mediation, however, there will be some instances where this final step is not appropriate.
In some disputes, such as family law matters, it may be necessary to file documentation in a court for the agreement to become binding. Your solicitor will be able to tell you what has to happen after the mediation.
