Mediation

Mediation is a private out of court dispute resolution process. Two or more parties agree to submit the dispute arising between them to mediation. A neutral mediator or co-mediators apply a facilitative or evaluative approach to assist the parties identify, clarify and narrow the issues in dispute. The mediator also helps parties negotiate and self-determine any resolution to the whole or part of the dispute. Mediation is conducted using agreed procedures, within set time-frames, and is private and confidential so far as the law allows.

In the facilitative approach, the mediator does not give advice or determine who is legally right or wrong. Whereas in the evaluative approach, the mediator (provided he or she has the requisite qualifications, experience and prior written consent of the parties) advises parties as to the strengths and weaknesses of each party’s case, possible outcomes if the matter proceeds further and proposes possible settlement scenarios. An evaluative mediator may appraise who is legally right or wrong, but their appraisal is not binding.

Many agreements contain mediation clauses which require parties to engage in mediation before commencing legal proceedings. In the recent raft of legislative reforms, disputants are now required to show courts, prior to commencing legal proceedings, that they have considered and, where appropriate, participated in reasonable pre-litigation dispute resolution processes such as mediation.

If proceedings have commenced, courts can refer any civil proceedings to court-annexed mediation, if it considers the circumstances appropriate, and if this occurs parties must participate in good faith.

For further information as to the types of matters Troy has been appointed to mediate please see: Mediation (Since 2001).