Discover Dispute Resolution and Mediation
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Information for Clients and Agreement to Participate
Mediation is a voluntary process where one or more independent mediators help you to respectfully discuss and negotiate a resolution to issues that you are experiencing with another person or organisation. Not all issues are suitable for mediation and not all mediations result in an agreement.
The mediator may document any agreements you reach regarding future actions required to resolve the issue. The mediator is not a judge. They will not determine what you must do. Their role is to help you to clarify the issues, communicate and problem-solve.
THE ROLES OF THE PARTICIPANTS
The participants are responsible for their discussion and resolving their disputes.
A mediator is a person qualified under the National Mediator Accreditation System (NMAS). The mediator’s role is to facilitate the mediation process. The mediator will not advise you or impose solutions. They will provide you with information to assist with making an informed decision or may suggest/refer you to independent advice.
The participants acknowledge that the mediator cannot give them legal or other advice.
THE MEDIATION PROCESS
The mediation process includes a pre-mediation stage and all communication with the mediators until the process is ended. The process ends if you reach an agreement regarding agenda items or the mediator or one of the parties decides that the process is at an end.
Before any joint sessions, the mediator or mediators will speak with each of you individually and confidentially to determine if mediation is appropriate, how the mediation process will be conducted and to help each of you to prepare for mediation.
Mediation is a three-stage structured process of determining the issues, considering options for resolution and negotiating an agreement.
The steps are:
- Mediators opening statements – The mediator establishes the ground rules and expectations for the mediation, reminds you both about confidentiality and gets your agreement to proceed with the session.
- Your opening statements – You will each be asked to speak in turn about what issues you would like to resolve, without the other person interrupting you. The mediator may ask clarifying questions and summarise what they hear to make sure they understand you properly.
- Mediation agenda – Based on the issues you each raise the mediator will create an agenda for the session. They will check the agenda with you and ask you to decide the order you would like to talk about the agenda items.
- Exploration of the issues – The exploration stage is a chance for you to talk to each other about the issues. The purpose of this stage is to clear up any misunderstandings and help you each to understand how the issues are impacting you. We find that once you understand each other’s points of view you will be ready to start considering options to resolve the issues.
- Option generation and problem-solving – Once you understand the issues fully, you may find that you are able to come up with new options for resolution and alternative ways to resolve problems that have seemed unresolvable in the past. The mediator will help you to consider the options and proposals you each raise. Some options won’t work once they are reality-tested and others may form the basis for an agreement.
- Private Sessions – Private sessions can be used as an opportunity to take time out from the exploration and speak confidentially with the mediator and/or an advisor. The mediator may also ask to speak to you both privately.
- Negotiation – The mediator will help you to put proposals for resolution to each other and to consider the short-term and long-term practicality of them. They will make a note of any proposals that you both agree to.
- Agreement – The mediator will ask you how you would like any points of agreement documented.
- Conclusion – At the end of the time allocated for the session the mediator will discuss with you the next steps. You may have only dealt with some of the issues and decide you need another mediation session. You may have reached a “trial agreement” and decide to come back to mediation after some time in the future to discuss any difficulties either of you experienced.
Mediation is a confidential process.
That means the mediator will not share information you provide unless you ask them to, they need to in order to complete their role, they are required by a court of law or they feel they have a duty of care to protect someone from harm or prevent a serious threat to a person or property.
By signing this agreement, you agree to keep what is discussed during mediation confidential. You may seek professional advice or discuss with a personal advisor or person who may be affected by the decisions reached. If you do discuss the mediation with someone who is not a party to this agreement you will ask them to not talk about it with others.
Participants agree not to request or require the mediator to provide evidence of anything that occurred within the mediation in any court or tribunal. This ensures that you can make proposals and consider options during the mediation process. Confidentiality of information provided and note-taking extends to all appointments associated with providing mediation, inclusive of intake or initial appointments, assessments, and any referred support service appointments.
The participants agree that any person involved in the mediation process may not record, copy, publish or distribute any part of any session without the consent of all persons involved (including the Mediator/s). It is an offence to make or publish a recording without consent.
Each participant will be expected to communicate respectfully at all times without interruption during mediation sessions. The mediator will work with both participants throughout the session to establish and maintain respectful discussion.
PARTICIPATION OF OTHERS
The mediator is required to complete an intake and assessment with all participants in a mediation. Other persons are not permitted to participate unless all participants, including the Mediator, provide consent.
This does not apply to participants, such as interpreters, that are necessary for participation due to cultural or linguistic diversity.
If the mediator becomes aware that a third participant is listening to the mediation or is in the room and/or vicinity the mediation will be cancelled and will need to be re-scheduled at the participant’s expense.
LEGAL EFFECT OF AGREEMENTS
An agreement reached during mediation is not generally legally enforceable but if it is signed and dated it can be used as evidence of agreement. You should get legal advice regarding making the agreement legally binding.
NEUTRALITY AND CONFLICT OF INTEREST
The mediator is independent of the participants in any dispute they negotiate. This means that they have no obligations and do not get a benefit from any specific outcome of the dispute.
The mediator must disclose and discuss with you any real or potential conflict of interest that they become aware of and you should immediately raise any concerns you have.
If you have any prior personal or professional relationship with a mediator this must be disclosed, and mediation will only proceed if all participants agree that the relationship is not one that would create a conflict of interest. A brief description of the prior relationship must be included on the signature page of this agreement.
In the event that the mediation service is conducted via video conference or by telephone, the following terms also apply.
The mediator and participants agree to the following:
- Not to share the video or telephone conference link and or password with any person not a party to the mediation service;
- To ensure that children of any of the participants and anyone under 18 years of age are not able to see or hear any part of the mediation service;
For further information on this, please find the following link to Microsoft Team’s privacy statement protocols – Microsoft Teams Privacy – Microsoft Teams | Microsoft Docs.
COSTS, FEES AND COOPERATION
Each party will meet its costs of and in connection with the mediation services unless otherwise agreed between the participants. Irrespective of the outcome of the mediation services, the participants will pay the practitioner’s fees and disbursements as specified below, in the proportions there stated.
Payments are not refundable, must be paid in full before the mediation service takes place and are subject to cancellation fees. To avoid doubt, the mediation service cannot proceed unless costs are paid before the mediation service takes place.
Prices are inclusive of administration and scheduling costs.
If a protection order is in place and allows for service within the order, applicable to any jurisdiction, it is at the sole discretion of the Mediator to deem whether it is appropriate to proceed with the service.
It is the responsibility of the client to provide all relevant legal documentation.
Attending mediation is voluntary; any person may withdraw at any time.
A mediator may suspend or terminate the mediation if they form the view that mediation is no longer suitable or productive.
EXCLUSION OF LIABILITY AND INDEMNITY
Jessica Mathews and Discover Dispute Resolution and Mediation are not liable for any act or omission in connection with the mediation or the Agreement to Participate other than fraud. The participants jointly and severally indemnify Jessica Mathews and Discover Dispute Resolution and Mediation in respect of all other liabilities, claims and associated costs arising from the mediation.
WRITTEN AGREEMENTS AND RELEASE OF INFORMATION
The mediator may only release information at the end of the mediation in accordance with instructions agreed to by both parties. For example, the mediator may write up and email you the points of agreement from your mediation session or supply a copy of your agreement to your employer or legal advisor if you give permission to do so.
RAISING FEEDBACK OR CONCERNS
We hope that we will be able to assist you to resolve all of the issues in dispute and if not, have a clear plan for how resolution may be achieved in the future. If appropriate, please direct any complaints or feedback to our principal Mediator, Jessica Mathews. If your matter is not resolved, the complaint can be referred to:
+61 2 9251 3366
1800 651 650
For further information, please see the NMAS standards found at:
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