FAQ’s

Because it makes sense in most cases as an appropriate, less adversarial,  less, costly and less time-consuming form of dispute resolution. Mediation provides a unique opportunity for parties to understand and unpack the dispute in a controlled environment.

Timing might differ for different kinds of disputes. Generally, earlier is better for workplace issues because if there is a dispute, tensions tend to escalate over time, productivity is lost, managers or HR spend most of their time trying to manage conflict and fractured relationships tend to impact other teams and the wider organisation.

Where there is already a defined dispute, agreements can be harder to achieve once parties become entrenched in their positions and would lose face, or suffer other consequences, to reverse claims and statements made earlier. 

For commercial matters there may be situations where facts need to crystallise before a useful negotiation can take place.  Alternatively parties could change their minds during a protracted legal battle and decide to try mediation.

No. It is never too late to mediate. It is always best to do it as early as possible, before legal costs and expenses are incurred. In some circumstances, the courts encourage parties to mediate a settlement, even after a matter has gone to court. High Court Rule 41A encourages all matters to be mediated even if the claims have gone to court.

• Parties who negotiate their own settlements, relationship objectives or workplace agreements, have more control over the outcome and are more satisfied with the decisions, therefore a much higher percentage tend to honour the agreement.
• Mediation is less time consuming because parties don’t have to wait for an available court date and can schedule the process at their convenience.
• A higher quality outcome can usually be achieved by engaging a skilled mediator.
• Mediation is generally less expensive when contrasted with the expense of litigation or other forms of dispute resolution.
• Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.
• People who negotiate their own settlements with the help of a mediator often feel more empowered and have the opportunity for personal learning and transformation.
• Parties can address both legal and emotional or psychological issues and include these in their settlement. The power of an apology or acknowledgement of wrongdoing is not included in a judgement!​
• The process of mediation can preserve or restore relationships or allow for the dissolution of the relationship to be better managed and more amicable. 
• If all else fails, mediation is voluntary, confidential, without prejudice and you can still go to arbitration or litigation.

Once you decide on mediation and have appointed a mediator, the process will be explained to you in more detail. The process might differ slightly for workplace mediations.

Here is an indication of what you can expect:

• The parties should receive an agreement to mediate that they need to sign.

• The mediator will contact the parties beforehand either separately or in a pre-mediation meeting to introduce him/herself, explain a bit about the process, reinforce confidentiality and ask for any relevant documentation, decision-making powers, etc. to help him/her prepare. It is very important that both parties and the mediator prepare in advance.

• You are allowed to have legal representatives present during a mediation and, in specialised cases, the mediator might call in a subject expert to help settle some factual claims.

• The mediator will book a neutral space on an agreed date for the mediation to take place or convene the mediation virtually using the MS Teams or Zoom platform.

• On the day of the mediation, parties will give opening statements about the matter and declare what is important to them about the dispute and what outcome(s) they seek.

• The mediator might split the parties and have separate confidential caucus sessions to explore the matter in more detail and to facilitate a negotiated agreement, or keep the parties together and facilitate the discussion according to the issues raised. The process is flexible and will be adapted as the mediator and parties see fit.

• Should a settlement be reached, the settlement agreement will be drafted and signed by both parties. The settlement agreement must be viable, sustainable and future focused.

Once a mediation settlement is agreed, either party can apply to the court to have the agreement enforced. The court will do so unless there are concerns that the agreement does not comply with the law.

This will depend on the issue and the parties. Typically a  commercial mediation can be settled in one or two days.  However, it all depends on the type of dispute, its complexity and the preparedness of the parties to seek to resolve their differences in a non-adversarial setting. Some disputes are mediated in a few hours, while others, like workplace mediations, often require several, sometimes shorter sessions spread out over a number of weeks to minimise disruption and allow time for monitoring the change in relationship.

The main role of a mediator is to be impartial, treat all parties fairly and manage the mediation process.  The presence of a skilled neutral changes the negotiating dynamic between the parties in a critical way.  The mediator can help them to keep  communication open and resolution oriented, the negotiation focused and framed positively, and to consider their positions and interests more objectively and realistically.  This calls for wide-ranging and exceptional skills on the mediator’s part, and the parties need to be able to trust the mediator.

Generally the costs are split between the parties. Either 50/50 or as agreed to by the parties. Workplace mediation sessions are paid for by the Company or Organisation.

Mediation has a very high settlement rate.  Up to 80% of all cases submitted to mediation do settle. However, there are some that do not. If you fail to reach an agreement, you still have the right to resort to arbitration or litigation if those avenues are available to you. Bearing in mind that the information disclosed during mediation cannot be used outside of the process.Even if the parties don’t settle, the process can still be used to narrow issues and streamline the adjudicative process.

There are three main mediation styles – facilitative, evaluative and transformative.  There are also hybrids of mediation and other processes to consider. The mediator you choose can explain the process they use in more detail to you.