Can My Claim Be Settled Through Mediation?

20/02/2019

What matters are suitable for mediation?

Matters commonly deemed suitable for mediation include:

Neighbourhood disputes
Family and intergenerational disputes, including those surrounding eldercare, family businesses and adult sibling conflict
Workplace disputes including workplace injury claims
Commercial disputes
Disputes relating to relationship separation
Multi-party or public disputes
Car accident claims
Other – Violence prevention, victim-offender mediation, non-profit organisations and faith communities, minor debt, consumer dispute

Some factors about your dispute or claim which may indicate that it is particularly suited to mediation include a willingness to participate in mediation, the need for parties to find a way to preserve or maintain their relationship and the potential for a negotiated outcome that better suits the needs and interests of all parties than a court outcome.

Benefits of Mediation

There are many benefits of mediation, including:

Cost – Mediations are generally free or inexpensive. While some mediators may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through legal channels, with less hourly fees and
Time – Mediations can often take place at a few weeks’ notice and may only take hours or half a day, whereas a trial may take several days and could occur months or years
Flexible – Mediation outcomes can be controlled, as the process is customised to your needs and mediators can help parties reach a variety of solutions according to the needs of the parties. Judges makes the final decision for both parties based on a limited set of
Unconstrained – Mediation participation does not remove your right to pursue court proceedings unless both parties agree to a settlement at the
Confidential – Mediation is strictly confidential, so your discussions won’t be referred to at a hearing unless you agree for them to be
Effective – Mediations have a high success rate, even if parties do not achieve a settlement at mediation, as it often helps clarify the issues that need to be resolved at
Collaborative – Mediation is a collaborative process where both parties work towards achieving a mutual agreement and attempting to preserve
Satisfaction and Compliance with the Agreement – Mediation results are usually mutually agreeable and compliance with the agreement is usually high. This further reduces costs as parties do not have to employ an attorney to force compliance with the agreement. Mediation is more likely to produce a result that is satisfactory and mutually agreeable for the
Less stressful – Mediations are less stressful than litigation as quicker and more informal, with less wellbeing and stress-related issues occurring during the process.
Less formal – Mediations are less formal than a hearing and legal representation is not
Impartial – Mediations are facilitated by independent and impartial mediators trained to be guided by the parties, whereas judges are often limited by laws and procedures.
Supportive environment – Mediations are run in supportive environments, as mediators are trained in working with difficult situations and facilitating in an impartial way to help identify

Preparation for mediation

Mediation may be the last opportunity you are given to meet with the other party to resolve the matter on your own terms before trial. It is important to be well-prepared to make the most of mediation, including having all relevant documentation ready.

There are a number of factors that can result in mediations failing and no resolution reached:

Participants do not come to the mediation with an open mind, prepared to speak up and listen, prepared to accept potential soft spots in their case and prepared to compromise
Participants do not provide consistent event history, painting a true and honest picture – If you provide different versions of events or social media posts contradicts the picture presented; your credibility will be undermined, and it may impact the other parties ability to view your side. It is very important to be honest and consistent in the information provided to all
Participants do not focus on key issues and get bogged down with minor

Possible outcomes to mediation

Each case is different and the outcomes or wishes of parties vary, with predominantly outcomes being agreements, apologies, exchange of goods and compensation for lost income, out-of-pocket expenses, general damages for pain and suffering or non-economic loss, past and future care, past and future treatment and assistance costs, and past and future loss of superannuation entitlements.

Experience shows that mediation is capable of assisting to resolve just about any dispute. Suitably qualified mediators have extensive training to ensure that a fair and confidential discussion can take place between the parties, which is far less stressful, timely and inexpensive than the alternative route.