Mediation
Mediation is a popular way of settling disputes without going to court. A mediator is an impartial third party who will guide you through a structured process to assist in the resolution of your dispute. It is up to the parties to reach an agreement and decide what is included in that agreement. Parties in a mediation may choose not to accept the agreement if they are unhappy with the terms reached or the suggested outcome. Agreements reached in mediation are not legally binding, unless the parties sign a statement agreeing to be bound to the agreement in law.
The mediator will not make a decision for the parties, but can draw up an agreement with terms each party agrees to. The mediation process allows for personal considerations to be taken into account including maintaining a working relationship between the parties.
Mediation can save considerable time, legal fees and court costs for parties and for the community. Often, outcomes reached in mediation cannot occur in court, where a judge is bound to interpret what a contract means, rather than taking into account the wishes of the parties. Unless directed to mediation by a court or tribunal, mediation is a voluntary process. If an agreement cannot be reached through mediation, the parties may then choose to take the matter to court.
When is mediation compulsory?
Some courts and tribunals have compulsory dispute resolution procedures. For example, the Family Court requires compulsory mediation in custody/parenting matters. Court actions in the Federal Court of Australia or the Federal Circuit Court can only commence if parties have taken genuine steps to resolve their disputes (Civil Dispute Resolution Act 2011) though there are some proceedings which are excluded such as criminal, civil penalty or appeals. If you have been referred to mediation by QCAT you may need to take part in an abbreviated mediation in which a trained mediator helps the parties discuss their issues and agree on a solution in a short period of time (usually no more than 1 hour).
The QLS Directory service allows you to find a nationally accredited mediator.
Expert Determination
Expert determination is a type of alternative dispute resolution process in which parties agree to have their dispute resolved (i.e. “determined”) by an independent third party (i.e. “the expert”). Sometimes the expert is a lawyer, but in many disputes the expert is a person with some technical expertise (such as an engineer, an accountant or a valuer). Parties to commercial contracts will often include dispute resolution clause which requires the parties to refer disputes that arise under the contract (or perhaps certain types of disputes) to be resolved by expert determination. Alternatively, parties may enter into a stand-alone “Expert Determination Agreement” if a dispute arises between them. Either way, the parties agree under the expert determination clause or Expert Determination Agreement that the expert’s determination in relation to the dispute will be binding upon them. That means there is no right of “appeal” (as there usually is with a court or tribunal judgment) and there are only limited ways in which the parties can seek to challenge the expert’s decision. The contract should include a mechanism which governs matters such as the type of expert to be appointed, how the expert is to be appointed and paid, and how the expert determination process will proceed. The expert will adopt procedures suitable to the circumstances, acting fairly, impartially and providing each participant a reasonable opportunity to present their position. Expert determination differs from an “arbitration” in that an arbitration gives the arbitrator and the party’s rights and obligations under the Commercial Arbitration Act, whereas an expert determination is governed by the contract between the parties
Conciliation
If your legal issues revolve around discrimination in the workplace or relate to services, the best way to resolve the dispute may be conciliation. This process assists parties in identifying the disputed issues and discussing possible terms of settlement while receiving expert advice from the conciliator who does not act as a judge for the parties. As with mediation, some courts and tribunals may require you to try conciliation before going to trial.
Collaborative law - negotiations without court involvement
Collaborative law involves both parties and their legal representatives specifically agreeing in writing to reach a settlement without resorting to litigation (a participation agreement is signed at the start of the process). The focus of all participants is to actively participate, negotiate and minimise conflict in order to avoid going to court. Although collaborative law can be used for commercial areas, the primary purpose in Australia is to resolve family law matters. The legal representatives are required to remove themselves from the matter if the parties are unable to reach an agreement.
Things to know about ADR services
Most ADR practitioners charge and hourly rate which varies depending on their experience as an ADR specialist, the area and complexity of the law governing the dispute and the regional area of practice. Like any other service, you can approach an ADR practitioner to negotiate their hourly rate or a lump sum fee.
Matters to be addressed during preparation include:
- understanding the process which will be followed;
- identifying your needs, rights and responsibilities;
- preparing your opening statement;
- obtaining legal advice about what factors would be considered by the court including the worst, best and alternative outcomes of your dispute;
- looking for alternate ways to achieve your desired outcome;
- considering the likely reaction and wants of the other party and ways to overcome their objections and concerns; and
- preparing to approach the mediation with an open mind, willing to negotiate and compromise.
It is common in complex disputes for a meeting to be held before the mediation session to assist the parties and to establish a timetable for the exchange of documentation. Parties will be asked to sign a mediation or arbitration agreement prior to the commencement of the resolution process.
A party's role in the mediation or arbitration is to state the case clearly and succinctly. Listen to the other side, remembering that if the dispute goes to court there may not be another opportunity to negotiate. Look for options that can benefit both sides and comply with the directions provided by the mediator or arbitrator. Be willing to cooperate and be prepared to reach an agreement.
Private meetings are used in ADR process for a number of reasons. These include giving the parties a break from tension and a chance for each party to give confidential information for consideration. Private meetings can happen at any time during the process and there may be more than one. Anyone present can request a private meeting. Some parties become concerned when the other side requests a private meeting, but it is a normal part of the process.