Before the mediation session it is a good idea to prepare yourself by understanding what to expect on the day. This will ensure you maximise the opportunity of reaching an agreement. Your case manager can also help you to prepare.
Prepare for your mediation
It’s important to attend the session in person; mediation is about speaking face-to-face. Your legal or other professional adviser can attend with you.
Attending mediation is voluntary and it does not mean that you have to agree to resolve your dispute. However, you are expected to listen to the views of the other party with an open mind, be cooperative and be ready to consider resolution options that may require a degree of compromise.
Make sure you are familiar with exactly what’s in dispute. It’s a good idea to prepare a short statement to present at the mediation that outlines the key issues in dispute and why they are important to you.
Think about the outcomes you would like to achieve. Think about other alternatives or options you would be prepared to consider.
Consider what the other party might want from the mediation. Think about what you can agree upon.
Know your bottom line; consider whether you are prepared to compromise to reach an agreement and what you can realistically afford or accept.
Understand the strengths and weaknesses of your case. Disputes are rarely black or white so you will need to be objective about your claims. You may decide to take legal advice before the mediation to fully understand what can be realistically achieved under the circumstances.
Be prepared to make decisions during the mediation session.
You may want to consider having a support person to accompany you, or to be available by telephone. This could be a legal or other professional adviser. Make sure that they are familiar with your case and that you can afford their fees to attend.
Bring all supporting documentation with you, in addition to any information you intend to discuss at the mediation. Being prepared is vital to achieve a full and constructive discussion.
If you require a translator to assist you during the mediation session, you must advise your ADR case manager so they can arrange for this service. A translator will be provided at no cost to you.
Don’t feel rushed. Arrive 15 minutes before your session is due to begin. Most mediations take at least four to six hours and we recommend you plan for a full day. In some cases, mediation may take even longer.
What to expect from your mediation session
Mediations are confidential and you will be able to speak openly, allowing an honest and frank discussion. The mediator will encourage you to understand each other’s perspective.
While many mediation sessions follow more or less a standard format, this can change depending on the mediator and the needs of the disputing parties, so be prepared to be flexible.
Typically the format includes:
- Introductions - For mediations held at our offices please notify the SBDC reception desk on Level 2 of your arrival. When all the parties have arrived you will be taken to the mediation room. An introduction and explanation of the mediation process is provided by the mediator, including confidentiality requirements. All the parties will be asked to sign an SBDC agreement to mediate.
- Presentations – While mediators may differ in their approach, they will usually ask each party to present their case and describe the issues in their own words and without interruption. The mediator will already have read background information to the dispute provided by the case manager.
- Discussion – The mediator may ask the parties to agree on an agenda by identifying and clarifying the issues to be discussed. You will be guided by the mediator in exploring the issues and discussing any information shared by the parties.
- Generation of options – The mediator will help the parties to discuss the issue, so that they reach their own options to resolve the dispute. The mediator will also assist the parties to decide whether the options are workable and durable.
- Private sessions – The mediator may decide to have confidential private sessions with either party at any time during the mediation. It is important to remember that while the mediator can help the parties to think about their options, they cannot provide legal advice. Nor can they make decisions, these must be made by the parties themselves. Anything discussed with the mediator during private sessions is confidential.
If you reach agreement at mediation
If an agreement is reached, a mediation outcomes document is drafted and signed by all parties. This is the end of the mediation process. The parties are expected to comply with the terms of the agreement. It is important to understand that the signed mediation outcomes agreement is a legally binding document and can be enforced in the courts.
If you cannot reach agreement at mediation
If an agreement is not reached, the parties can continue to negotiate or consider other legal avenues to resolve the dispute. You may apply to an appropriate court or tribunal for a formal determination to be made. Your case manager will discuss options with you.
If the dispute is related to a retail shop lease, either party may refer the matter the State Administrative Tribunal (SAT). You will need to obtain a certificate from the Small Business Commissioner (available upon request from your case manager) and include this with your SAT application.
After attending mediation, you may be surveyed on behalf of the State Government, which heavily subsidises our mediation service. We also conduct quarterly surveys on all of our services, including mediation. This information is essential in helping us to improve our services and your participation would be appreciated.
If you need further assistance contact your ADR Case Manager on 13 12 49.