FAQs & Gallery
The following are some Frequently Asked Questions and Information.
A. What is a mediation ?
Mediation is a facilitation process that promotes the self-determination of the parties. With the support of a Mediator, the parties can:
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Communicate with each other, exchange information and seek understanding;
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Identify, clarify and explore interests, issues and underlying needs;
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Consider their alternatives;
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Generate and evaluate options;
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Negotiate with each other;
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Reach and make their own decisions.
B. The role of the Mediator
The role of the Mediator is to facilitate a discussion between the parties about the issues in dispute. The Mediator will explore the issues and options upon which to move forward and help to resolve their dispute, either in part or in full.
It is like having an intermediary who tries to get the parties to talk and come together on some or all of the issues in dispute.
Clearly, a Mediator does not:
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Play judge;
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Establish who is right or wrong;
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Suggest or offer solutions;
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Counsel the parties in dispute;
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Give legal advice - never;
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Provide therapy.
Thus there is a clear distinction between mediations, from areas such as counselling, as well as conciliation, arbitration and adjudication.
C. Why choose an accredited Mediator ?
An accredited Mediator is one registered with the national Mediation Standards Board (MSB) and who has been approved and complies with their approval and practice standards via a Recognised Mediator Accredited Body (RMAB). In our case, that is the DRB Department of Justice and Attorney-General (Qld).
The RMAB which does the approval process is satisfied that the Mediator has:
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Evidence of competence having regard to their qualifications training and experience;
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Maintains professional insurance as a requisite; and
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Is of good character.
D. The Benefits of mediation
Mediation is a much less formal arrangement which attempts to foster a less confrontational and workable environment within which to settle a dispute.
So far as commercial disputes and litigation are concerned, it can be considerably more cost effective and certainly less stressful than going through the court system towards a protracted and even more costly hearing.
In regards to workplace relations it has been said that:
On an individual level unresolved conflict can lead to:
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Stress and anxiety;
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Sleep problems;
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Low morale;
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Burnout or poor health;
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Absenteeism.
And on a team level:
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Reduced productivity;
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Missed deadlines;
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Poor quality work;
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Increased sick-days;
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Absenteeism;
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Physical altercations.
E. Confidentiality of a mediation
The mediation that takes place is totally private and confidential, subject as always to any overriding law. They are held without prejudice so that the parties can freely negotiate without being bound to what they say, it is somewhat like talking "off the record". There is an "Agreement to Mediate" document which needs to be signed prior to the mediation which includes a confidentiality clause and this is further confirmed at the mediation.
Any notes or computer records are destroyed or deleted by the Mediator after the mediation. The only exception is the settled "Agreement", if any, as a record needs to be kept by the Mediator for any number of reasons, such as where one party loses one's agreement a copy can be provided.
F. Should others attend with the parties such as lawyers or support persons ?
This is a very difficult question.
In regards to commercial matters and litigation, certainly the parties' lawyers should be consulted prior, and indeed having the parties' lawyers attending the mediation could be sound and if the matter settles, they can assist in the drawing of the agreement or settlement, on the spot. Non legal support persons can also be emotionally supportive in relationship matters, such as in the workplace.
However, from a Mediator's perspective, these lawyers and/or support people can be a gigantic nuisance. They will impede the informality of the meeting, impede the direct discussions between the parties and impede the likelihood of a resolution of the dispute.
We cannot advise either way. What we do suggest is that both parties should consider being equally represented, that is, if one has the support of a lawyer or a support person, then both parties should consider having that same support and this intention should be disclosed by the parties at the "intake" stage.
G. "Agreement to Mediate"
(aka mediation agreement)
The signing of an "Agreement to Mediate" is a preliminary task and a pre-requisite to the conduct of any mediation. All parties will be sent this document to look over and sign prior to coming together for the mediation. It will be in the standard form and will set out the roles of the Mediator and the parties participating and as to their respective responsibilities and rights thereof.
We use the standard document as provided by the Queensland Law Society 2018.
This document is universally referred to as the "mediation agreement" which is quite misleading. We prefer to call it an "Agreement to Mediate" so as not to confuse it with the finality "Agreement" which is created at the conclusion of the mediation and recites details of what the parties have hopefully resolved and agreed to.
H. The venue (location)
The mediation will take place at a venue to be determined prior.
The venue with a specific time and place will be chosen satisfactory to the parties. Normally this will be a conference room which the Mediator will arrange in the appropriate region. The fee for this is borne by the parties and normally equally.
This should be at a neutral place so that neither of the parties has the feeling of an advantage, nor the feeling that one party is being given preferential treatment over the other.
This is particularly so in a workplace relations matter where hosting an employer/employee mediation at the employer's premises is normally a no-no. An exception would be where the parties are both employees and thus there is no sense of being coerced during the process, though even here a senior executive vs a subordinate can still have that sense of intimidation.
Mediations can take place literally anywhere. From a conference room in the offices of the Queensland Law Society in Brisbane, some other business area, or legal offices, to what may simply be available including rooms at RSL clubs, bowling clubs, community meeting halls, motels and hotels, a local pub, or even a meeting of indigenous people under the shade of the proverbial coolabah tree.
Gallery
The carrying of the Olympic Games torch up to the
CSIRO Parkes Radio Telescope aka "The Dish" in 2000
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"To speak the name of the dead is to make them live again"
(Book of the Dead of Hunefer c.1450 BC)
image from the British Museum
Legal costing the Gold Coast way with a friendly barrister from Sydney 2002