What is Mediation & Other Frequently Asked Questions in Australia

You may have heard mediation is a potential alternative to going to court, costing less and taking much less time. But what is it and can it help you?

As mediators and lawyers, we have put together a guide to mediation in Australia, including what it is, the types of disputes mediation can help resolve and answers to many of our most frequently asked questions. If you have any other questions not answered here, we encourage you to book an initial phone or video consultation with our team to get the help you’re looking for.

What is mediation in Australia?

The Federal Court of Australia defines mediation as, “a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.”

In short, mediation is when a qualified mediator is used as a third party to assist two parties in an attempt to resolve a matter. This may be a property dispute, dispute of a will, business dispute or another type of dispute handled by mediators in Australia. It is important to remember your mediator is not able to provide you with legal advice and cannot make any decisions for you. You are in control of your outcome at mediation.

Common Types of Disputes Mediation Can Help Resolve

Business, Commercial & Corporation Mediation

Business dispute resolution is one of the most common types of mediation. Professional business or commercial mediation can help resolve business-related disputes without the need to escalate the matter to court. Types of business or commercial disputes mediators often assist with include:

• Workplace or employee disputes.
• Supplier disputes.
• Franchise or business partner disputes.
• Client or customer disputes.
• Personal injury disputes.
• Commercial transaction disputes.
• Between the board of directors.
• Defamation disputes.
• Intellectual property disputes.
• Complex multi-party disputes.

All types of businesses may find themselves with a dispute, including sole traders, companies, unions, government agencies, not-for-profit organisations and more.

Neighbourhood Disputes

Disputes can start between neighbours and communities over a number of issues, including the planting or removal of trees, plants or gardens, fencing, animals, privacy, noise, children, parking and more. Mediation can help resolve disputes out of the court by helping both or all parties find an amicable solution.

Using mediation for neighbourhood or community disputes is often faster, more cost effective and more flexible than going to court. It also encourages positive relationships and helps promote communication, which can help prevent further disputes from occuring in the future.

Family Law Disputes

Under the Australian Family Law, it is compulsory for people wishing to file for divorce or arrange parenting orders to attend family dispute resolution. But there are other reasons you may need mediation for your family law matter.

Mediation can help you come to resolutions without the need for costly, time-consuming court processes. Whether the matter is regarding your children, property, assets or other issues, we can be an unbiased third party to help you find a solution that works for both parties, without the need for judges and courts.

Property Disputes

When you own or rent a property with anyone else, problems can arise. This includes co-owning with family, a partner, friends or business partners, or even in a rental situation. You may find yourself with disputes over selling, repairs and maintenance, share of the property and more. This is where a mediator can help you come to an amicable solution between you and the other party, or parties, helping you save on court fees.

Frequently Asked Questions About Mediation in Australia

How much does mediation cost in Australia?

Mediation can range from a couple of hundred dollars to thousands of dollars depending on the mediator, their experience, the matter and the time it takes to come to a resolution. However, mediation is often more affordable than alternatives, like attending court. Seeing a mediator first or seeking legal advice can help you know what the best avenue will be for you.

Australians can access free or price-reduced mediation through their state’s disputes agency, however, wait times can be months long. This is often not useful to most situations, especially if an outcome is needed in the near future.

At Aspire Lawyers, we are both lawyers and mediators, so can give you a number of options to pursue. If you qualify, you can choose between us being your mediator or family lawyer. However, due to conflict of interest, we cannot be both. But this is something we can help you with during your free consultation.

What is a mediator?

A mediator is an impartial third party who assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques. These techniques aim to open or improve dialogue and empathy between the parties, aiming to help them reach an
agreement. Mediators are trained in working with difficult situations and as a neutral facilitator.

The primary role of a mediator is to help disputing parties think outside of the box for possible solutions to the dispute, broadening the range of possible solutions. While they analyse and assess the situation, and engage in reality testing, they are not a representative of either party. They do not offer prescriptive advice, such as “You should settle this case” or “Your next offer should be…”. You may be able to engage your own lawyer to attend the mediation with you for advice and guidance.

What’s the difference between mediation and arbitration?

Mediation and arbitration are both forms of alternative dispute resolution (ADR) that help parties resolve conflicts outside of the courtroom. A mediator is a neutral third party who helps the parties discuss and attempt to resolve a legal matter. They help each party explore options outside the box and open lines of communication to help resolve the matter.

In mediation, the parties retain control over their own outcomes. Mediators do not make decisions or rulings. Rather, they help the parties create their own voluntary agreement in a confidential setting.

On the other hand, arbitration involves a neutral third party, called an arbitrator, who is given the power to decide the outcome of the dispute. The arbitrator listens to facts and evidence and renders an award. Typically, the process is more structured and similar to a court case. Each party makes an opening statement and presents their side to the arbitrator. Once each party has presented their case, the arbitrator will consider both sides and then come to a conclusion. The final decision is a verdict reached by the arbitrator.