Mediation, commonly described as a form of alternative dispute resolution (ADR), is a mutual way of resolving disputes between two or more parties with tangible effects. Typically, a mediator (third party) assists the conflicting sides come to an agreement. In Australia, mediation as a process of dispute resolution is used to resolves conflicts in a variety of domains such as commercial, workplace, family matters, legal and diplomatic and many more.
The most important tenet of mediation in Australia
Handfuls of tenets do exist but the most important in Australia is that mediation is confidential. The law categorically prohibits conflicting parties from adducing evidence of a document prepared, or a communication made in connection with an endeavour to confer a settlement. Confidentiality of the process also requires the willingness of parties involved to settle their difference through the mediation.
How mediation works
As from 2000, courts in NSW were vested with the power to refer civil proceedings to mediation with or without the approval of the conflicting parties. Additionally, the law charge the legislation with a mandate of ensuring that, conflicting sides take genuine steps when resolving their disputes using mediation.
The plaintiffs in accordance with the statute are required to notify the defendants a probable allegation at least 90 days before commencing proceedings. In addition, they are required to back up their claim with sufficient written details accompanied by a settlement offer.
The defendants are then given an opportunity to reply within 60 days after the claim has been made; accepting the offer, or make a counteroffer or completely deny the liability.
Before the process begins, the plaintiff’s notification together with the defendants’ response must be filed in court under a suppressed file.
It is the courts responsibility to give further guidance on how the dispute should be resolved and follows up to ensure that an agreement was reached.
Disputes resolved through mediation in Australia
Family provision disputes-often; this type of dispute involves disagreements revolving around the wills and how to partition the estates of the deceased persons. Dissatisfied parties are required by the law to apply for a “family provision order” which will automatically lead to mediation.
Farm debts disputes- this involves disputes arising in relation with debts sustained for the purpose of conducting farming. All the required procedures to be followed in this type of dispute are clearly outlined in the Farm Debt Mediation Act 1994 (FDMA) (NSW).
Retail tenancy disputes- this typically involves disputes between landlords and tenants. They fall under Retail Leases Act 1994 (NSW).
The parties involved are expected to fully prepare themselves, meet and disclose the nature of the problem, come up with potential solutions and enact what they have agreed on.
To find out more about mediation and how it would help solve your legal issue, contact Solicitor Marilyn Rossides who is experienced in dealing with such matters.
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