What is mediation?
Mediation is 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.
You can’t always get what you want
But if you try sometimes, well, you might find
You get what you need
Why mediate?
Most of the mediation I do, is in the context of parties who are already litigating and have decided to (or have been directed to) mediate. Litigation is expensive, time consuming and often emotionally draining. What’s even worse is that it only produces binary outcomes (and usually the winner takes all).
Courts are bound by their jurisdiction (power to decide) as well as the laws of evidence and procedure. None of those limits apply in mediation. Mediation is flexible, faster and way less expensive. The parties destiny is in their own hands. It is commonplace that issues beyond those before the court are resolved and agreements reached, on terms that a court would simply not be able to order.
While I never thought I would quote from The Rolling Stones on my website, it does capture the spirit of mediation and does encourage the parties to look beyond their positions and to explore their interests with view to reaching an agreement.
What do I bring to your mediation?
Apart from professional and life experience and a general empathetic nature, I bring a pro-active and interactive style to the mediation. I actively listen to the parties and assist them to consider and explore their options.
Some mediation stories
The Law Reports
I am a lawyer. I have spent many years in law libraries and my chambers has many shelves of law reports. As a mediator I look at those shelves differently. What I now see is thousands of cases where parties had a contested trial, and/or an appeal and perhaps even special leave to further appeal in the High Court. Most of those parties were represented by lawyers who undoubtedly advised on the merits of their cases. The problem is that 50% of those parties won.
Chocolate Bar
Suppose after a tiring day at the office you return home to find your two children engaged in a squabble in the living room over the last remaining chocolate bar. The solution is obvious – cut it in half. However, if you were a facilitative mediator you might ask each of the children why they wanted it. You might also find that child#1 says they want a snack, but child#2 says they want the wrapper because it contains details of a competition they want to enter. That would lead to a different solution with a better outcome for both.
Some frequently asked questions
Where can we have the mediation?
We can have the mediation wherever you want. I practice from Edmund Barton Chambers which is conveniently located in Martin Place in Sydney’s CBD. EBC has conference rooms and smaller “break out” rooms which are available for parties to use. There will be no charge to the parties for any mediation which is conducted by me. The facilities are otherwise available for hire.
How much will it cost?
All costs are always negotiable and are usually shared equally between the parties. As a guide, I would usually charge $400/hour (or $4000/day)+GST for a mediation where the parties are already in litigation. Unless there is a large volume of pre-reading, I don’t charge extra for preparation or for a preliminary conference if it’s appropriate to have one.
Can we mediate online?
If you don’t want to have a face to face mediation then it is possible to use video-conferencing technology. My preference is for MS Teams, but we could do Zoom or Skype. It is also worth considering the well regarded specialist mediation platform, Immediation (where I am also on the panel of mediators). There is an extra charge to use Immediation
What happens if we don't agree?
Even if you can’t agree at the mediation, sometimes the seeds of an idea are sown and resolution will happen at a later time (often within a few days). In hard cases, sometimes the parties try mediation more than once.
However, what happens at the mediation is confidential and without prejudice. To use a sporting analogy this means that whatever happens in the mediation stays in the mediation. It also means that no-one is bound by any concessions or admissions made and that evidence can’t be used in subsequent litigation.
National Standards
I am accredited under the national standards. If you want to view the national standards click here.
Getting to Yes
If you only ever read one negotiation/dispute resolution book in your lifetime, I highly recommend Fisher and Ury’s “Getting to Yes“. It is short and easy to read and sets out the principles of interest based negotiation.
Mediation and Confidentiality Agreements
Prior to mediation, I will ask the parties to each enter into a mediation agreement with me. On the day of the mediation, all of those present will need to sign a confidentiality agreement. I’m happy to send you draft agreements if you want one.