What is Mediation?
Mediationis a form of alternative dispute resolution (ADR), a way of resolving disputes without having to go to Court. Instead of having a Judge or Magistrate decide your matter by imposing "their decision on you", whether you like it or not, a Mediator will get the result you want.
What is a Mediator?
It has sometimes been said, that by analogy:-
A Mediator works very much like a good tour guide. In the same way as you engage a tour guide to show you where to go in a strange country, you telling the tour guide where you would like to go and the things you would like to see, a Mediator does much the same. You tell the Mediator the outcome you want, where you would like the dispute to end up, the outcomes you would like to see and the Mediator will guide you through the process, navigating a way through all the issues to get you where you want to go [or at least close enough to your desired destination that you can “get off the train” and have peace at last].
You Get To Say What You Want Heard
Each party in the dispute tells the Mediator what:
- They want to say about the other party – to get their side of the story across in a safe and protected environment, free of any risk
- They would like as the outcome. The solution that would work for them which or may not necessarily be just a “legal solution” [e.g. it could include a written apology or an admission “of guilt”]
The Mediator then helps to guide the parties to achieve as close to that outcome as they can, often to a point that might not be exactly what the party wanted to begin with but close enough that each party can live with the result, sufficient enough to resolve their immediate dispute.
Safe – non confrontational
Mediation is non-confrontational, safe, non-aggressive, does not expose you to any unnecessary stress or trauma, can be designed to accommodate all of your particular needs and requirements. For example, parties can be in separate rooms, even separate buildings, never having to see the other side. It is entirely, user friendly as it is you who controls how the Mediation progresses. In a similar way to the example of the tour guide referred to above, you can decide when to have a break, when to stop for lunch, when to adjourn to have some time to think about where you are going with the Mediation. It is an entirely voluntary process. Mediation can be used to resolve any type of dispute:
- Matrimonial/de facto disputes involving property
- Matrimonial/de facto disputes involving children
- Domestic violence matters
- Commercial disputes involving contracts or entitlements
- Workplace disputes
- Neighbourhood disputes
- Commercial leasing disputes
- Disputes about wills and estates
- Intellectual property disputes
- Any type of dispute at all
The benefits of Mediation are many, too many to name here and greatly outweigh going to Court. Some of the many reasons why Mediation is so much better than going to Court include the following:
You control the process
Mediation is entirely voluntary. No-one is compelled to attend. The situation is quite different to going to Court when the parties are compelled to attend. If at any time during a Mediation you don't want to proceed any further, you can stop at any time. If you don't agree with what is going on during the process, you can withdraw at any time. You only remain in a Mediation if you want to. It is voluntary in every sense of the word. Most importantly, you control the outcome. You do not have a Judge or Magistrate telling you what to do; you come to an agreement yourself and you are only bound to comply with that agreement if you agree with the outcome.
Say whatever you want
You get to say things you might never be allowed to say in a Court. In a Court room, you can only say or produce evidence that is admissible in a Court of law according to the "rules of evidence". There are very strict rules about what is admissible in a Court of law and often, things you would very much like to say cannot be said as you may not have the necessary (or admissible) evidence.
A Mediation is strictly confidential compared to a Court where everything that is said is on the public record. Accordingly, if you are involved in the very sensitive matter that you would not like to be on the public record, a Mediation is the ideal way to attend to the situation. Because the Mediation is entirely voluntary, confidentiality agreements can be signed beforehand to ensure that nothing that is said in the Mediation can be repeated elsewhere.
Cheaper and faster than Court
Because the legal process is so exacting, legal proceedings can be very expensive and very time-consuming, both for yourself and for your lawyers. Mediation is generally far cheaper. Not only is it cheaper, it is much, much faster. Depending on how clogged up the Courts might be, to have a trial can take up to a year or even more. By contrast, depending on the complexity of the matter, a Mediation can be organised within a matter of weeks.
Why do Mediations work?
Statistically, Mediations are extraordinarily successful. Parties that were otherwise at complete loggerheads beforehand, often come to a settlement in a Mediation. The practical reality is that many disputes are a result of parties having a slightly different understanding of exactly the same situation.
What may have otherwise seemed plainly obvious to one party, if given enough time and the opportunity to explain themselves, may become more obvious to the other, enabling that other party to see a different perspective. This in turn can reduce the distance the parties are otherwise apart and help to find a way to “bridge the gap” in a way acceptable to both.
The plain reality is that it is quite common for disputing parties to see things a slightly different way once an opportunity is created that enables them, sometimes for the first time to either hear exactly what the other side is saying without distortion or to give the other side the benefit of their point of view on the same topic.
It is also a fact that parties quickly get to understand how costly it would be to continue on to a full trial if the matter is not settled at Mediation. What can begin as a dispute over "a matter of principle" often becomes less important and soon, the parties can see a way forward to resolve the matter on terms they can live with.
Mediation is the way recommended by all Courts and Judges as the best way to try and resolve matters rather than going to trial. Family/De Facto law (divorce, property settlement, children’s issues), civil disputes, contracts, franchising disputes, neighbour disputes, leases, landlord disputes, agreements, copyright, intellectual property disputes – any dispute whatsoever.
It is also compulsory before instituting proceedings pursuant to the Family law Act (subject to a number of exceptions such as domestic violence, child abuse, emergency injunctive relief etc.)
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Richard Armour is a fully qualified mediator and lawyer. In that way, he can also act as a conciliator as well as a mediator which means he is able to give the parties the benefit of his legal experience to assist them in trying to reach a resolution of their matter. To find out how to set up a Mediation for your dispute or for general enqiries, contact us today.
Armour & Allen are specialist Adelaide lawyers for providing legal advice tailored to your needs. We focus on realistic outcomes & guide you through the best options to achieve your goals.