Mediation
Mediation is a consensual, confidential and relatively informal way to resolve disputes. The parties work with a skilled and independent mediator to identify the issues in dispute, develop and explore settlement options, assess the implications of settlement options and negotiate an agreement that will work for everyone.
The aim is to empower parties to resolve disputes quickly and affordably without needing a decision from a judge, arbitrator or adjudicator. Mediation allows for flexible and creative solutions beyond strict legal outcomes and can help preserve relationships.
Process Overview
Starting the process
Parties need to agree to mediation. They can do this before or after the dispute arises.
Appointment of a mediator
A mediator will typically be appointed within 1 to 3 Working Days.
Preparation
Good preparation by both parties and the mediator is key to a successful mediation. Ensure you are set up for success before the mediation begins.
Opening statement
An opening statement in mediation is an initial opportunity for each party to express their perspectives and goals, setting the groundwork for negotiation.
Issue identification
In mediation, identifying issues is key to understanding the conflict and facilitating discussions towards a mutually acceptable resolution.
Joint sessions and caucusing
Mediation processes typically involve joint sessions and caucusing. These stages alternate as needed to facilitate effective resolution.
Outcomes
Mediation outcomes can range from full to partial settlements or no resolution, but the process is always beneficial in developing understanding, preserving relationships, and ensuring confidentiality.
Cost of mediation
Our focus is on delivering cost-proportionate process solutions. Find out more about the cost of mediation.
Step 1. Starting the process
Alternatively, they can do this by using the Building Disputes Tribunal (BDT) model mediation clause in their contract, which allows any future disputes to be solved this way.
In this case, to initiate the process, the applicant (the person starting the process) must send a Notice of Mediation to let the other side know. This isn’t needed if the parties agree to mediate by signing a separate mediation agreement.
Under either option, the applicant starts the process by applying to BDT. A Registrar will be assigned to the case to help the parties, their advisors, and the mediator throughout the mediation.
Step 2. Appointment of a Mediator
The Building Disputes Tribunal (BDT) appoints the mediator unless the parties involved have agreed on a specific person. BDT makes the appointment once it has received the completed application and payment. If the parties have agreed on a specific person, they must meet certain criteria, and BDT must agree that they are suitable, independent, and impartial.
When selecting a mediator, BDT considers various factors, such as any agreements between the parties, the nature and value of the dispute, and the ability of the person to mediate the case effectively and efficiently. The appointed mediator must be neutral and cannot act as an advocate for any party.
The appointment made by BDT is final and confirmed by a Notice of Appointment issued to the parties.
Step 3. Preparation
Before engaging in mediation, both the mediator and the parties involved must prepare well. The mediator may speak with the parties before any joint mediation session to introduce themselves, establish a structure for the mediation, and answer any questions. The mediator’s preparation includes gaining a good understanding of the dispute, the parties involved, and the context in which the mediation has arisen.
The mediator will usually request that the parties exchange position statements with each other and copy them to the mediator before the mediation. (Sometimes this is not required, depending on the nature of the dispute).
A position statement outlines the party’s understanding of the dispute, their positions and interests. It helps clarify the issues and sets the foundation for discussions. This provides everyone with a clear overview of the dispute and each party’s stance.
Mediation is a negotiation. It is useful to think about the other party’s needs and interests, and possible options for mutual gain or satisfaction. Mediation is a forum for the parties to engage constructively and problem-solve with a view to resolving their dispute in a way that all parties are content with.
Step 4. Opening statement
An opening statement enables each party to present their side of the story. It’s each party’s introduction to the dispute, where they outline their main concerns, interests, and what they hope to achieve from the mediation.
The position statement can be used for this purpose, or a party may submit a separate opening statement that builds on the position statement.
The opening statement sets the stage for the discussions that follow. It provides a safe and structured space for each party to express their feelings and perspectives without interruption. This helps everyone involved to understand the situation from each other’s point of view, laying the foundation for a constructive dialogue and negotiation process.
Step 5. Issue identification
In mediation, identifying issues is a crucial step. The mediator helps the parties to identify and understand the key points of conflict to be resolved. This is not about deciding who is right or wrong but rather understanding what matters most to each party.
It’s important to acknowledge that mediation is flexible and may be conducted in many ways. However, in the early stages, the mediator will likely guide a joint discussion where everyone openly talks about their concerns. This helps to bring the underlying issues to the surface. There could be misunderstandings, differences in expectations, or conflicting interests. Once these issues are identified, they can be addressed one-by-one in the mediation process.
This step clarifies the dispute and often reveals that parties have more common ground than they initially thought. This makes it easier to move forward towards finding a mutually acceptable resolution.
Step 6. Joint sessions and caucusing
Joint sessions and caucusing are two common stages in a mediation process. In a joint session, all parties come together to discuss the issues. With the help of the mediator, they openly share their points of view, concerns, and what they hope to achieve. In a joint session, everyone is able to get a clear understanding of each other’s perspectives and the issues that need resolving.
Conversely, a caucus is a private session where the mediator meets with each party separately. These meetings are confidential. They allow each party to discuss their concerns and potential solutions with the mediator openly. The mediator can then use this information to help guide the parties towards a resolution that is acceptable to everyone. These private meetings are a safe space where each party can feel comfortable expressing their thoughts and feelings without judgement.
A mediator will not share anything disclosed during caucus with the other parties without permission.
The parties may move in and out of joint sessions and caucusing as required to allow the mediation to proceed as effectively and efficiently as possible.
Step 7. Outcomes
These can vary. In some cases, parties may reach a full settlement where all issues are addressed and agreed upon. This is the ideal outcome, leading to a formal agreement that is mutually satisfactory and binding for all parties involved.
In other instances, a partial settlement may be achieved where some, but not all, issues are resolved. This is still beneficial as it narrows down the areas of dispute and makes any further negotiations or legal proceedings more manageable.
There are cases where no settlement is reached. While this might seem like a failure, it’s important to note that the mediation process itself can still be beneficial. It provides a platform for parties to express their views and understand each other’s perspectives, which can lead to a clearer understanding of the dispute. This can be valuable in maintaining relationships and potentially facilitates future negotiations.
Regardless of the outcome, confidentiality is a fundamental aspect of mediation. Anything discussed during the process is generally confidential and cannot be used in court or disclosed outside of the mediation without consent. This encourages open and honest communication, as parties can speak freely without fear that their words will be used against them later. This confidentiality extends to the mediator as well, who is typically not allowed to disclose any information about the mediation process or its outcome, unless required by law or agreed by all parties.
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Phone: +64 9 486 7143
Freephone: 0508 BUILDING
Freephone: 0508 284 534
Office Hours: Monday to Friday 8:30AM to 5:00PM (excl. public holidays)