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As a mediator, François is a neutral and unbiased intermediary, whose role is to facilitate the discussion of issues in dispute between parties, by assisting parties to understand each other’s underlying concerns and values, as well as facilitating the generation of options to each of the issues, thereby guiding parties towards settlement by negotiation in a positive and constructive atmosphere. Importantly, François cannot, as an impartial mediator, offer individual legal advice to the parties, nor provide representation to either party to the mediation, during or after the mediation. It is important, before any mediation session begins, that the parties seek independent legal advice from a solicitor holding a current practising certificate.

Mediation

Mediation is an alternative form of dispute resolution to the more formal options litigation and arbitration. Mediation is a process for resolving disputes between parties who are genuinely motivated to mediate, and who desire to achieve mutually satisfying solutions to their disputes by participating in a process guided by a mediator. As such, mediation is quite distinct from counselling or therapy.

Mediation is a confidential process, hence anything that is discussed during the mediation session will not be repeated outside of the session. Although a mediator is bound not to reveal what the parties have said in mediation, exceptions exist: where an existing law requires the mediator to report certain information, such as child abuse; and where the mediator believes it is necessary to reveal information so as to prevent serious bodily injury or death.

There are advantages to mediation over other forms of dispute resolution:

• Mediation allows parties to fully communicate with one another in a positive and constructive environment, which is managed by a neutral intermediary;
• Mediation is a quicker process than the traditional option of litigation, with mediation sessions being organised in accordance with the availability of the parties and the mediator;
• Mediation is a cost-effective process, without ongoing legal costs, including filing fees, court fees, witness expenses, and Counsel's fees;
• Mediation sessions are held privately and conducted on a ‘without prejudice’ basis, hence avoiding newspaper reportage, court reportage and transcription;
• Mediation sessions are conducted without formal protocol or procedures, making it a simplified process to litigation;
• Mediation allows the parties – not the Judges, their lawyers, or anyone else – to make the decisions, thereby empowering the parties;
• Mediation assists the parties to maintain their existing relationship with one another, which would otherwise be damaged beyond repair through the litigation process.

Mediation is not an appropriate form of dispute resolution in the following circumstances:

• The dispute requires a determination of a legal issue or the interpretation of a document, or it requires an urgent injunction;
• The parties have a history of intimidation, violence or acrimony;
• There exists between the parties an imbalance of power, such that either party is unable to effectively participate in their own best interests;
• The parties have agreed to establish a legal or public precedent;
• A statutory time limitation or deadline expiry date is imminent, as mediation does not suspend the lapsing of a statutory time limitation.

Choosing the Mediator

In determining who will be the mediator of the mediation of a particular dispute, the following considerations may assist in making this decision:

• The mediator’s experience in mediation, specifically in mediation of similar disputes to the dispute to be mediated;
• The mediator’s expertise in the area of law from which the dispute arises, for example, Family Law or Personal Injury Law;
• The mediator’s training and any other credentials in mediation;
• The mediator’s education and professional background, in facilitating the generation of options to the issues to be resolved;
• The mediator’s references and reputation for neutrality, competency and professionalism;
• The location of the mediator, in an area convenient to the parties.

Preparing for Mediation

Before attending the mediation session, each party should:

• Identify the relevant issues to be discussed and resolved at mediation;
• Consider their underlying concerns in relation to each issue;
• Seek independent legal advice  of the likely outcome of litigation of the same issues;
• Consider numerous options for each issue;
• Seek independent expert advice for any particular issues, such as industry-specific regulations, or guidelines of appropriate contact arrangements for children according to their ages and developmental stages;
• Have authority to settle the dispute in writing at the mediation, without having to defer such decision-making power to a third party.

The Mediation Process

With both parties attending the mediation session with the mediator, the mediator will begin by outlining the terms of the Agreement to Mediate, as well as setting down guidelines for participation in the mediation session. Each party will, in turn, be afforded the opportunity to describe the issues to be resolved from their particular point of view. From the issues raised by both parties, the mediator will fashion an agenda, which will list the issues of both parties, hence setting the parameters of the mediation session. Each issue will be discussed, with each party, in turn, being afforded the opportunity to state their underlying concerns, from which options will be generated by both parties, with a negotiation of the options ensuing. If settlement of all of the issues is achieved, the agreement is prepared by the mediator, the agreement is presented to each party and, if appropriate, each party signs the agreement.