About mediation

Mediation is the intervention in a conflict, negotiation or dispute of an acceptable and neutral third party who has no decision-making power but who assists the parties involved reach a mutually acceptable settlement of the issues between them.

The mediation process is a staged process  which is managed by the mediator. It typically involves both private and joint meetings between the mediator and the parties. These meetings are confidential, as is the process as a whole. The mediator encourages the parties to explore their differences in some depth before they start working on solutions, so that any agreement reached addresses the concerns raised by the parties as directly as possible.

The parties to a mediation sign an Agreement to Mediate before the mediation commences, and if the mediation results in an agreement they may sign a Settlement Agreement.

Agreements to Mediate vary according to the type of dispute but they all usually include clauses confirming that the mediation process is voluntary, confidential and without prejudice. They also explain the mediator’s role as a process facilitator who has no authority to decide the case or act as an advocate for any party

At the conclusion of a mediation, and if settlement is achieved, the parties will decide whether they wish to draft a Settlement Agreement. In workplace mediation it is sometimes the case that the parties do not feel that it is necessary to commit their agreement to writing and they are more comfortable with a verbal agreement than a written one. In such circumstances it is important to ensure that what has been agreed is clearly understood by the parties.

It is more typical for parties to draft an agreement setting out the terms of their settlement and to sign this agreement. In the case of employment disputes this will take the form of a formal Settlement Agreement, which must be signed off by an independent legal advisor for it to have legal effect. In the case of a commercial dispute where a claim had already been made the agreement make take the form of a Tomlin Order and which would be lodged in the relevant Court.

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