Frequently Asked Questions
Q. What is Mediation?
A. Mediation is a voluntary form of dispute resolution where an independent, neutral and legally trained mediator facilitates the discussion between two or more people (and their lawyers) who are in a dispute, to identify and agree on a mutually satisfactory resolution to their dispute. It offers a quick and cost-effective alternative to litigation, thereby minimising stress and avoiding large legal fees from the court proceedings and trial.
Mediation offers people a safe and private environment, in which the mediator manages the negotiation process and provides a level playing field for people to explore future-focused outcomes through collaboration and communication, allowing them to preserve relationships and reputation.
The mediator has the advantage of hearing confidentially from both people during private consultations held before mediation and during the joint session, and can often see where the people have common interests in getting the matter settled which might never come out through a direct “person to person” negotiation. With this knowledge, the mediator can guide the people towards resolution without their giving away their negotiation positions.
Q. How long does Mediation take?
A. From start to finish, mediation can be fast and only take between 5-10 hours over a few days or weeks to resolve all concerns, depending on the nature of the dispute and the number of participants involved. The time and dates of the mediation session can suit you, along with the amount of time it takes to come to a resolution.
Q. What areas do you provide Mediation in?
- Aboriginal and Torres Strait Issues
- Aged Care
- Arts & Entertainment
- Banking & Finance
- Bankruptcy & Insolvency
- Club & Associations
- Construction & Engineering
- Consumer/Fair Trading, Product Liability
- Divorce/Separation & Parenting
- Environment & Planning
- Equal Opportunity, Sexual Harassment & Discrimination
- Government Privatization /Outsourcing
- Industrial Relations
- Intellectual Relations
- Local Government
- Media & Communications
- Medical Negligence
- Personal Injury & Property Damage
- Professional Negligence
- Property/Retail shop leases & Conveyancing
- Resources & Energy
- Sports Law
- Taxation & Superannuation
- Tourism & Hospitality
- Trade Practices
- Wills Estates & Succession
- Workers Compensation
Q. How much does Mediation cost?
A. Mediation with SHAW Mediation Australia is charged at a fixed fee before the mediation begins, which depends upon the type of dispute and how many people are involved and how much time is allocated for the joint session. Often people agree to share the cost equally, but where one person is in a financially superior position they might agree to pay up front for the mediation and the cost of the mediation is on the agenda at the mediation for negotiation. Sometimes, while one person pays for the mediation, the other agrees to pay for the outcome to be legally formalised.
Q. How long do I have to wait for a Mediator?
A. You decide when the mediation process begins. At SHAW Mediation Australia, we have a nationwide network of experienced and accredited mediators with legal experience, who can accommodate a time that suits you. Unlike going to court, there is no wait period with mediation and you determine the speed at which the process progresses.
Q. How does Mediation work?
A. At SHAW Mediation Australia, there is a three-step process for dispute resolution by mediation. The first step is for our mediators to meet with all people separately and privately for a consultation. In this private session we discuss the background to the dispute, the issues you wish to cover in mediation, and anything that you feel may affect the mediation process. You can also discuss the kinds of outcomes you want to consider and information or documents which may be required and importantly how we can help you achieve your outcome. The mediator will assess the suitability of your case for mediation, as well as any possibly factors that may hinder the process and design with your input the mediation process.
After the initial meetings, a joint session will be arranged aimed to resolve the dispute and come to an agreed outcome. The mediator will lay out the guidelines of the discussion and the roles of people involved. Concerns raised by both sides will be explained and summarised, and an agenda will be formed for the discussion. You might agree on who speaks first and you control the flow of discussion. You are encouraged to consult your lawyer before mediation, however you will be the one to speak. The mediator will speak to all the people involved together and also talk to you privately during the course of the mediation to check how you are feeling about the session and to discuss anything that you do not feel comfortable to say to the other person in the joint session. You will then be encouraged to come up with options for resolution and negotiate the outcome with the support and assistance of the mediator. Once agreed, the outcome is written down and signed by all people present, and you may then have it legally formalised with your lawyer, if you wish.
Q. What can I expect in the private consultation?
A. It is important in this private session for the participants to be open with the mediator. Mediators understand that people often come to mediation impacted by certain emotions such as grief, fear or anger. Mediations have more chance of success if everyone is feeling as much at ease as is possible. Mediators do not want people feeling intimidated or confronted by the process. The private session helps the mediator work through these issues for you while hearing your perspective about what has occurred, as they will invariably have an influence on the way people reacts to the mediation.
Anything that is discussed in the private meeting is confidential and will not be disclosed by the mediator to the other person unless the mediator is specifically permitted by you to do so. During the private sessions, the Mediator clarifies with you your concerns and what issues you wish to deal with, and then tries to narrow down areas where the people are in agreement or disagreement. Private sessions are also an opportunity to reality test options and sound out any offers you are considering making before doing so.
Q. When does the joint mediation take place?
A. This stage normally commences when everyone is comfortable to meet. It is anticipated that the preparatory work for a negotiation process is mostly done in advance of the joint session, where possible. The role of the mediator is to control the process in the joint session, and facilitate your negotiations and the offers you make and exchange.
Q. What if I feel uncomfortable with the Mediation?
A. You can have a break at any time – no reason is needed. You will find that dealing with some issues may be overwhelming or confronting. Our mediators will then speak with you privately and explore possible outcomes to your concern, and reality-test them in private. Or you can express your concern immediately during the joint session and the mediator will try to deal with it openly. Lastly, you can ask for the mediation session to be adjourned. One of the mediator’s tasks is to try to balance the negotiating strengths of each person and to minimise any feelings of intimidation so that it creates a level-playing field for both people.
Q. What is the experience of the Mediators?
A. Each mediator engaged by SHAW Mediation Australia is a qualified and experienced lawyer and accredited mediator, practicing within the field of confidence and interest. Each mediator holds all appropriate accreditations and is provided with regular support to ensure best service available for the clients to reach their best outcomes.
Our mediators are able to ask the right questions and get the heart of the matter quickly. They empower you to come up with creative solutions for your dispute. They remain neutral as they have no vested interest in the type of outcome, or the people involved; their role is to eliminate the dispute and they do this quickly, conveniently and confidentially, so you can move on with your life.
Q. Do I still need a lawyer if I use a Mediator?
A. In most mediations, you don’t need a lawyer’s direct participation. However, we encourage obtaining legal advice beforehand so you are informed about your legal options and likely outcomes. While it is not necessary, you are welcome to have your lawyer attend the joint mediation if everyone knows and agrees.
Q. What is Mediation NOT about?
A. Mediation is not about counselling, therapy or reconciliation of relationship, nor finding fault or blame.
The mediator runs the process of mediation but you are in control. Mediation is a voluntary process. The mediator’s role is to remain neutral and independent to help people have a conversation with each other in a safe and respectful environment. The mediator does not give legal advice or tell you what to do.
Q. Is Mediation like Counselling?
A. Mediation is not counselling or therapy. It is a transparent process of dispute resolution involving face to face negotiation in the presence of the mediator in which the people with concerns or problems come together to discuss their perspectives to resolve their differences and to achieve an outcome that is lasting and legally enforceable, if they wish. It is future focused negotiation to resolve an outcome.
Q. Does SHAW guarantee a solution/resolution?
A. The outcome and resolution is up to the parties involved in the dispute. SHAW Mediation therefore can’t guarantee a solution or a total resolution of the dispute. Our mediators are legally-trained and knowledgeable about dispute resolution, and will facilitate the discussion to allow for an optimal environment to generate mutually-satisfactory outcomes. The outcome will be recorded and provided by SHAW Mediation Australia to all parties to the mediation.
Q. Are arrangements reached at Mediation binding at Law?
A. At the conclusion of the mediation the outcome is recorded by the mediator and everyone present signs it as a Memorandum of Understanding. The outcome is later distributed to everyone in the mediation. However it is not legally binding at that stage. The outcome can be sent to the lawyers and legally formalised, if you wish.
Even though our mediators are lawyers, the reason they don’t prepare the formal legal document is to ensure they maintain their impartiality and not jeopardise their neutrality.
Alison Shaw of SHAW Mediation successfully mediated a contract and building works dispute for one of our clients. I found the mediation to be useful in requiring the disputing parties to be in one place at one time, allowing each side to express their position (and even vent their frustrations) whilst being kept in line by an experienced mediator. It was by no means certain to me beforehand that the matter would resolve at the mediation, but Alison’s guidance and systematic approach facilitated a commercial settlement. I am confident the parties would not have reached a better outcome if they had gone to court. I rate highly the mediation process used by Alison Shaw in this matter, and would recommend her to other clients considering mediation in the future.Matthew Hawke