What is a Mediation and how is it used in a legal claim?

While it is possible that a legal claim will be heard by a Court at a Trial hearing, there are other pathways available for resolution. Those pathways include:

• Pre-action meetings (a pre-Court stage meeting that often includes a settlement discussion).
• An informal settlement conference (a settlement conference held outside the Court system).
• A Court ordered settlement conference (a settlement conference convened due to Court order and held at the Court).
• A Mediation.

The purpose of this blog is to explain what a Mediation is and what to expect going into a Mediation.

Mediation Definition

The Federal Court of Australia defines a Mediation as ‘a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties’.

What to Expect from a Mediation

In Advance of the Mediation

The parties to a dispute need to agree to appoint a Mediator unless a Mediator is appointed by Court order. This means that before a Mediation can occur both parties either need to voluntarily agree to attend a Mediation or for a Court to Order that a Mediation is to be held.

Often the Mediator will be a senior barrister (a Senior Counsel or Kings Counsel) or a retired Judge.

Often, in preparation for the Mediation, the parties to a compensation claim or dispute will provide a Mediator with a bundle of material relevant to the dispute, known as a Mediation Book, so that the Mediator can be familiar with the case before attending the Mediation.

It is also often the case that the parties to a compensation claim or dispute will provide a ‘position paper’ (a document setting out the respective position of the party for the purposes of the Mediation) to the Mediator and the other party, or parties, to a dispute, before attending the Mediation.

Mediators sometimes wish to hold a meeting with the team for each party (the lawyers and client for each party) in advance of the Mediation, to discuss the options for how to approach the Mediation and to set out some basic rules for the Mediation.

Before commencing a Mediation, all parties to the dispute will be required to enter into a Mediation Agreement, which is a document binding the parties. Common terms of the Mediation Agreement include:

• that all parties will use their best endeavours to participate in the Mediation in good faith;
• that discussions at the Mediation are confidential and without prejudice as to Court proceedings(cannot be provided to the Court at Trial); and
• an arrangement for payment of the Mediator’s fee.

On the day of the Mediation there may be a joint session (a session where all the parties and their legal teams sit in a room with the Mediator and discuss their positions) and/or individual sessions (where the parties and their legal teams sit in a room with the Mediator only, and the Mediator communicates between parties).

Mediations can often take a whole day.

A Mediation can be held at the Court, if Court ordered, but are more commonly held privately at the offices of the lawyers for one of the parties.

At MKF Lawyers we appreciate the role of Mediation in the dispute resolution process, in that it is a tool for potential compensation claim resolution. A Mediation is a useful option for considering the possible resolution of a compensation claim or dispute because:

• it provides an occasion for the parties to discuss the dispute outside of Court;
• it gives the parties control over how discussions regarding the dispute occur;
• it is more structured than a settlement conference; 
• it often runs longer than a settlement conference would, to provide the parties time to think; 
• a Mediation can be held at any point in a dispute;
• it is an appropriate method for dealing with any amount of money; and
• it gives the parties control over the resolution of a dispute, rather than leaving it to a Court to decide.

A mediation can be used used in any legal claim, including:

• Motor Vehicle Accident Claims
• Childhood Sexual Abuse Claims
• Childhood Physical Abuse Claims
• Dog Attack Claims
• Fatal Accident Claims
• Medical Negligence Claims
• Public Liability Claims
• Will and Inheritance Disputes

If you are considering resolving your personal injury claim or estate dispute, please contact the team at MKF Lawyers to consider whether a Mediation is a good fit for the circumstances of your claim.