“Mediation is a structured
negotiation process”

Mediation

The Federal Court of Australia provides this explanation of 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. Mediation is an alternative to a judge imposing a decision on the parties.

What cases are suitable for mediation?

All cases, regardless of their complexity or number of parties, are eligible to be referred to mediation. The types of matters commonly mediated at the Federal Court include commercial and corporations law, intellectual property, industrial law, consumer law, human rights, admiralty, tax and costs.

Some factors about your dispute may indicate that it is particularly suited to mediation, such as:

  1. a willingness to participate in mediation
  2. the possibility that a judge’s decision will not end the dispute
  3. the need for parties to find a way to preserve their relationship
  4. the existence of non-monetary factors; and
  5. the potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision.”

Often, the best resolution to a conflict is achieved through mediation which is a process that provides for parties to achieve a negotiated outcome that avoids the far more extended and costly course of litigation. Roberts Gray Lawyers can provide a consultation to assist you if you are considering mediation or want to explore your options for handling a dispute.

Mediation is usually fast, cost effective and delivers results that have high levels of compliance. Mediation can be less stressful than traditional legal processes and is more cost-effective. Importantly, the process of mediation can assist with rebuilding relationships and maintaining positive collaboration. 

In giving advice relating to disputes in Victoria, lawyers will take into account the provisions of the Civil Procedure Act 2010 which, in Chapter 2, sets out its purpose and overarching obligations: 

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

  (2) Without limiting how the overarching purpose is achieved, it may be achieved by—  

(a) the determination of the proceeding by the court;   

(b) agreement between the parties;   

(c) any appropriate dispute resolution process—  

(i) agreed to by the parties; or  

  (ii) ordered by the court.

Roberts Gray Lawyers supports the following observations made in the conclusion of the article THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL in the Monash University Law Review (2014/30). 

“In the context of the institutionalisation of ADR [alternative dispute resolution], the involvement of lawyers in the mediation process is a central feature of the success or failure of widespread use of ADR processes within the civil justice system. Lawyers’ practices will influence whether mediation practices are facilitative or become evaluative in nature.

Our findings point towards the potential for lawyers to adopt a range of roles in court-connected ADR practice beyond VCAT. Lawyers can adopt roles in mediation that provide clients with both the protection of legal representation around mediation but with the benefits of client empowerment through direct participation.

Lawyers’ contribution to mediation can go beyond client advocacy, even beyond legal advice and reality testing alternatives to settlement. In the right collaborative environment, lawyers can adopt more engaged practices such as active listening in mediation to provide more holistic advice, holistic reality testing with clients, strategically intervening in mediation by narrowing the issues in dispute and generating options, collaboratively working with others in mediation, advocating for vulnerable clients and, in some circumstances, providing creative solutions to client problems.”

Roberts Gray Lawyers seeks to provide clients benefits as per the recommendations in this article via active listening, assisting with narrowing issues and advocating for vulnerable clients.