Frequently Asked Questions – Mediation
Here are some of our most frequently asked questions pertaining to mediation. If you have a question that is not listed please call us or book a time so that we can give you peace of mind with an answer.
1. What is mediation?
Mediation is a voluntary process pursuant to which party is in dispute meet together in an environment to which they both agree to try and resolve their dispute by discussion and negotiation.
2. What is a mediator?
A Mediator is a person who is trained to facilitate parties trying to resolve differences. The Mediator does not need to be a lawyer and can be anyone trained in the process of mediation.
3. Can you give me an example of how a mediation works?
Imagine a very bitter divorce. Imagine the parties are deadlocked and cannot come to an agreement as to how the proceeds from the sale of their house will be divided. Imagine one of the parties has formed a new relationship unbeknown to the other party and the party that has formed that relationship does not want the other party to know as they know the other party will not be able to cope. Imagine the partner of that party who has formed the new relationship needs a kidney transplant and the only place it can be done is in Los Angeles but the cost of flying there and undergoing the operation is $85,000. In a mediation, that party would be allowed to speak to the mediator in private and might possibly tell the mediator that they would settle for $85,000 as they are desperate for their partner to have the kidney transplant. Armed with that very special information, the mediator could then speak to the other party in private dicussion, with the permission of the 1st party, and could say that they can guarantee the case will settle for $85,000. That would never be possible in a court because the fact that the partner of the other party needed a kidney operation would be completely irrelevant to the case but in a mediation process, the facility exists for private negotiations with the mediator that the other party never knows about.
4. What if I begin the mediation process and I don’t like it?
You can walk at any time because the process is entirely voluntary.
5. Can anything I say in a mediation later be used against me in a Court?
No: everything said in the mediation is strictly confidential and can never be used against you in any later court proceedings. Accordingly, you are free to admit things that you might otherwise be prevented from doing for fear of compromising your case. For example, it is very common in negligence claims that one party just wants an apology from the other but because apologies are considered to be admissions, the apology can never be made. In a mediation, you have the opportunity of being able to make an apology without it ever being used against you to mediation ultimately fails.
6. Does the mediation all have to occur at the one time?
No. A mediation is entirely voluntary. You can make whatever arrangements you like. If you would like to adjourn the mediation and continue at a later time, you are certainly entitled to do so. No one can make you stay at a mediation-you can walk at any time.
7. What if I am determined before I go to a mediation never to settle for anything less than I want?
You should go anyway. If the mediation fails and the matter still goes to court, the Magistrate/Judge will almost certainly ask whether each side has entered into negotiations to try and resolve the matter before asking the state to provide all of the very expensive court facilities to resolve the matter. If you must advise the Court that you have refused to negotiate, that could indirectly, act against you in any subsequent trial as you will have inadvertently given the court evidence from your own mouth that you are afraid to talk about matters to try and resolve them. That can have the effect of causing a court to have a tarnished view of any evidence you might give.
8.Who pays for the mediation and what does it cost?
Generally, each party pays one half each (i.e. 50:50). Different mediators charge different hourly rates. As a general rule, the rate varies between $250 and $300 per hour plus GST which the parties share equally.
9. What if I don’t have the money to pay my share of the mediation?
Depending on the nature of the matter, sometimes one party will bear the cost of the mediation themselves on the understanding that if a settlement is reached, then the other party will pay their 50% share out of the proceeds of the settlement.
10. How long do mediations take?
It depends on the case. However, it is very common for mediations to finish in one day. This can mean 4 – 8 hours of solid negotiation.
11. Is a member of your firm able to act as a mediator?
Yes. Mr Richard Armour of our office is a fully qualified mediator. If you would like more information on how to organise a mediation, telephone or email our office for a free information pack.
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