February 2020

Why Mediation?

Dispute resolution clauses are a common feature of many commercial and employment agreements. However, it seems there may be some confusion about what is a facilitated mediation or meeting, often referred to in those clauses, situated between informal discussions between parties and engaging in a legal process towards litigation.

A facilitated mediation or meeting using the services of a trained and accredited mediator is where the parties sit down to a confidential conference. The purpose is to explore the issues of concern and develop a mutually acceptable pathway to a resolution. It may or may not include support people.

The mediator effectively acts as the independent referee: setting the boundaries of discussion and behaviour; managing the flow of the meeting to ensure all get an equal hearing; and, prompting discussion towards clarity and resolution. The mediator does not determine a resolution or adjudicate on what rights or obligations have been infringed, that is for the participating parties to agree on.

A facilitated mediation is a great leveller, it revolves around finding satisfactory resolutions to issues. It seeks to get to the heart of what has happened to cause a dispute. Ultimately, this may have little to do with the infringement of legal rights or obligations, and can be more about issues around managing relationships.

The exchange of letters between solicitors or a meeting between the parties and respective solicitors in a legal environment is not the same thing as a facilitated mediation or meeting. The dynamics, the roles of the parties and the focus of discussion will likely be very different.

Engaging the services of a solicitor can be a very useful and advisable exercise before making any decision on how to proceed. Having clarity on the legal issues is important. Further, in some circumstances, the capacity to get clarity on legal issues during mediation can be useful to keep discussions on track. Accordingly, a solicitor can prove to be a useful and valuable support person.

For more information on whether mediation may be right for you please contact NCA Consulting on 1300 186 684