Mediation

Frequently asked questions

What is mediation?

Mediation is a form of alternative dispute resolution in which:-

How do I arrange a mediation?

Simply contact the mediator. You can do this by using the mediator's email address from this list. The mediator will take an active part in organising it. You are likely already to have contacted the other side to your dispute and agreed that a mediation should take place. But if you have not done this, don't worry. The mediator will do it for you if you ask (you will need to provide the other side's contact details). The mediator will ask both sides for their dates to avoid and arrange a date for the mediation, and then start organising a venue.

Does mediation have to be face to face?

Preferably. But it is possible to carry out mediations or part of the mediation process by telephone or video conferencing.

Where are mediations conducted?

It is best to conduct a mediation on neutral ground, where each side will feel relaxed. The mediator will organise this. A party to the mediation may offer the use of premises and the mediator will check whether the other side agrees to that venue.

How formal are mediations?

They are as informal as possible. They will have a structure and follow a process which is decided by the mediator, but which will be flexible to suit the matter in hand.

Will I have my say at the mediation?

Of course. The whole idea of the mediation is that each side should be able fully to air their views about the matter in hand.

How should I dress?

Whatever makes you comfortable.

Should I bring refreshment?

You are free to do so, however if the mediation is going to go over meal times there will be a break or the mediator will organise some refreshment.

Who should attend the mediation?

If the aim of the mediation is to reach a binding agreement between the parties, then it is very important that the attendees are the decision-makers with authority to reach that agreement. The mediator will check this. If it is not intended to reach a binding agreement at the mediation then the question of authority is not so important. In both cases, the parties to the question dispute or claim should attend the mediation and preferably all those who are substantially to be affected by the outcome of the mediation should also attend.

Can attendees represent a larger group?

Sometimes mediations are conducted with a view to the attendees reporting back to other people who do not attend. This may be where the representative of a group of people attends the mediation. This is perfectly acceptable when appropriate, and the mediator will ensure that all parties are aware of the situation. It must be clear who is representing whom and the extent of the authority of the representative.

Can I bring a friend or a relative?

No problem. Just make sure that the mediator is informed of this in advance so that all parties to the mediation are aware who will be attending.

Can I bring my lawyer?

Yes, but the mediator will need to know this in advance. If only one side comes with a lawyer the mediator will be cautious to ensure that the balance of the mediation is not disturbed. It will be important that the mediator checks beforehand with both sides that they are aware of, and prepared for, the imbalance.

Should my lawyer come?

There are two main instances when it is preferable for a party's lawyer to be present:-

Can the mediator give me legal advice or express a view?

The mediator's role is not to give legal advice at a mediation even if the mediator is a solicitor or barrister. Sometimes a party at a mediation will ask a mediator to express a view about the merits of the party's case. Whether or not the mediator does so will depend on the nature of the mediation being conducted, and whether the mediator is comfortable expressing a view. This may be a personal decision of the mediator.

I need an interpreter, can this be achieved?

Yes, but please ensure that the mediator is aware of this with sufficient time to organise it. You can bring your own interpreter if you like since proceedings are very informal.

Can I contact others during the mediation?

Of course, although is important that the decision-maker should attend the mediation and not merely be contactable by phone, particularly if the intention is to reach a binding agreement at the mediation.

How long will the mediation take?

The mediator will say in advance how long the mediation is scheduled to take. This will depend on the nature of the matter and the complexity of the issues. As some guide, a very simple mediation might take an hour or two. A fairly simple court claim might be allocated mediation of half a day. A more complex claim or dispute might be one day. Some more complex disputes or where several parties are involved might need to be mediated over more than one day.

Must I attend for the whole mediation?

Yes, although if you need a break this can be organised. Or it might be possible to adjourn the mediation and continue it some other time. If you cannot attend for the whole time that the mediation has been planned you must tell the mediator in advance.

I need some adjustments because of a disability, can this be done?

Yes, but please ensure that the mediator is aware of the adjustments required with sufficient time to achieve them.

Will I have to speak to the other side?

Not if you do not wish to. It also depends on the type of mediation process followed. In some mediations the parties are kept separate most of the time. In others they discuss the issues together directly. The mediation process is very flexible. Just make your feelings known to the mediator and the process can be adjusted as appropriate.

Will I have to be in the same room as the other side?

Not if you do not wish to. Just make your feelings known to the mediator and the process can be adjusted as appropriate.

How many mediators will there be?

Mediations are normally conducted with just one mediator, however often there will be two. The second mediator might act as co-mediator or as a mediator's assistant. There can be more than two mediators in more complex matters or where there are number of parties involved.

Are mediators trained and accredited?

Training plays a crucial part in mediation because of the skills and flexibility which are required. In Australia there is an accreditation system for mediators. As part of this, mediators must not only be trained to become mediators, but also must attend regularly several hours of continuous training. All the mediators on this website are properly trained and attend continuous training in accordance with these requirements. All are accredited mediators in Australia or in equivalent jurisdictions.

What paperwork should I provide to the mediator?

The mediator will inform you what paperwork is needed. In a simple case very little will be needed, except some general idea of both side's position. In court claims which have only just started, the pleadings may be all that is required, together with pre-action correspondence demonstrating each side's position. In court claims which are close to trial, there will be much more documentation available, but the mediator will probably only need the pleadings, witness evidence, expert evidence (if any) and core documents. In the unusual case it may be that the position of the parties will not be apparent from the documents. If that happens, the mediator might ask the parties to prepare position statements.

When should I provide the paperwork to the mediator?

The mediator will inform you when to provide this.

Should I provide to the mediator any without prejudice correspondence?

Bear in mind that such correspondence will be confidential to both of the parties if they are part of negotiations between them. Usually therefore both parties need to consent before such correspondence can be shown or described to the mediator. However, the mediator will encourage the parties to agree to this since it provides valuable information to assist in the mediation process. Isolated offers not stated to be without prejudice can probably be disclosed to the mediator without difficulty but if they are part of discussions between both sides they may take on the nature of without prejudice discussions.

Should I inform the mediator what offers have previously been made?

Bear in mind that such offers may well be confidential to both the parties if they are part of negotiations conducted between them. If so, then both parties need to consent before the mediator can be told about them. Isolated offers not stated to be without prejudice can probably be disclosed to the mediator without difficulty. Or a without prejudice offer can be converted to an "open" offer and thereby lose its nature of confidentiality. Generally, the mediator will encourage the parties to disclose all offers made as they provide valuable information to assist in the mediation process.

Will the mediator make a decision?

Not at all. The mediator's role is not to decide which side's point of view is correct, or who has the stronger case. The mediator is there only to facilitate settlement of the matter by the parties themselves.

Will I have to agree to the terms of a mediation agreement?

At the very least, in agreeing to attend a mediation the parties are agreeing to pay the mediator's fee (and if charged, accommodation and incidental expenses).
Except in simple cases the parties will be asked to sign a mediation agreement before the mediation commences. This will contain a confidentiality clause restraining the parties from disclosing to anyone else or using anything that is said and done in the mediation, including any offers made. The mediator will also be bound by this.

Confidentiality

The mediation agreement will contain a confidentiality clause restraining the parties from disclosing to anyone else or using anything that is said and done in the mediation, including any offers made. The mediator will also be bound by this. Statutes, the common law, professional rules and the mediator's own practice guidelines also cover the question of confidentiality. These matters and the limit to confidentiality, are discussed in confidentiality of mediations.

Is the agreement reached at mediation binding?

This depends on the type of dispute. It may be important for the parties to know from the outset whether or not an attempt will be made to reach a binding settlement. If so, this question will be discussed at an early stage.
Some types of mediation cannot result in binding agreements because for example they may need approval from parties not present at the mediation or the approval of the court. In such cases, agreements in principle can be reached.

How much will the mediation cost?

This is fully covered in cost of mediation.

Is payment for the mediation required in advance?

Usually. This is not only better for the mediator but also demonstrates a commitment by the parties to the mediation process.

To whom should payment be made?

Payment should be made to the mediator or as specified by the mediator.

By whom should payment be made?

Usually the cost of the mediation is shared between the parties, although there is no strict rule.

Are mediators insured?

Yes, this is a pre-requisite to acting as an accredited mediator in Australia, and all mediators introduced on this site are required to be insured for all matters arising from their mediations.

Is the qmediate site an agent of the mediator?

Qmediate is only an introducer. Whilst all mediators on the site are carefully picked, qmediate is not responsible for any matters arising from the mediations resulting from that introduction.

What is qmediate?

Qmediate is a domain name registered in Australia. Qmediate is not a legal entity. It is not a trading name. Qadr and qmediation are also domain names in the same way. The person who has set up this site and who runs it is Jeremy Gordon ABN 22 606 385 100.