Principles of Mediation
05/10/2022 / By Interact Admin / Leave a Comment / Information
The fundamental principles of mediation under the National Mediator Accreditation System in Australia are;
1. Mediation is a voluntary process
Any participants in mediation are free to end the process at any time.
You may be strongly encouraged to attempt to resolve your dispute through mediation by your workplace policies or a contract you entered into but you can’t be forced, and you can stop the process.
The mediator will also end the mediation session or process if they believe it is not being effective or is no longer safe.
2. Mediation is a confidential process
What is discussed and proposed in mediated negotiations remains confidential. It can’t be used against you and the offers are only valid during the mediation unless it is agreed that it will be for a period of time afterwards to allow for legal advice.
Confidentiality means it is safe to consider options, make proposals and discuss the issues in detail. Considering a range of options in detail is the best way to find the option that is going to work to resolve your dispute.
Your mediator will ask you both to sign a contract called the “Agreement to Mediate” to make this confidentiality legally binding.
You must provide full and frank disclosure of information, especially in financial negotiations. Failure to do so can invalidate any agreement reached based on the information provided.
3. The Mediator is neutral
That means that the mediator will not take sides. It is their job to make sure that the process is appropriate and help you all to communicate, problem solve and hopefully reach an agreement.
There must be no conflict of interest that raises suspicions that the mediator is not neutral such as a previous personal or commercial relationship with someone. If there is a relationship of some type the mediator must identify it, discuss it with all participants and get an agreement to proceed. If someone does not agree to proceed they must not mediate.
A mediator can’t have a vested interest in the outcome so “no agreement, no fee” payment options are absolutely unethical for mediators to enter into.
The role of the mediator is to help the people involved to find their own acceptable solutions.
4. The mediator does not give legal advice
The mediator can give legal information but they can not ethically give legal advice to two people with conflicting interests, such as people participating in mediation, even if they are a lawyer.
You should get legal advice from a lawyer before mediation and before signing any agreement if it is going to become a contract that binds you to do certain things.
Sometimes the mediator will identify a legal issue about which advice is needed and will help you to prepare questions to ask your lawyer. Knowing what questions to ask can make sure that you are well informed and can make good decisions, reducing costs and the risk that you will not realise the benefits of proposals on the table or the costs of not reaching an agreement until it is too late.
5. Limits to confidentiality
The Mediator is under an obligation to breach confidentiality if a serious safety issue arises, particularly to a child, or if the mediator is legally obliged to report a crime or threats to property or people.
Abuse, violence or threats of violence are absolutely not acceptable in mediation.
6. National Accreditation Standards
You should make sure that your mediator is NMAS Accredited for all mediation other than Family Law Mediation.
NMAS Accreditation means that their Recognised Mediator Accreditation Body (RMAB) has confirmed that they have successfully completed mediation training, been assessed for competence and have maintained their skills and knowledge by completing professional development and mediations. This is checked every two years.
If someone claims to be a mediator but are not NMAS Accredited there is no independent evidence of any of those safeguards. The NMAS can be downloaded here – national-mediator-accreditation-system.pdf (msb.org.au)
For family law your mediator should be a Family Dispute Resolution Practitioner (FDRP) That means they have post graduate level studies in family law mediation, have met the requirements to apply for registration with the Australian Attorney Generals Department according to the regulations that apply to this role. You can check the register on the AG’s department website to see if your mediator is registered. If they are not listed it is possible that they are registered but requested not to have a profile. You can contact the AG’s department to check. Family Dispute Resolution Register – Attorney General’s Department (ag.gov.au)
7. The standard model for Mediation
In the standard model for mediation there will be several meetings. Firstly individual meetings to prepare and then joint meetings, either in person or online via zoom or another video meeting platform.
The intial stage, called pre-mediation, is to make sure mediation is appropriate and to help you to prepare. This can be one session of 1 to 1 1/2 hours or even more than one session depending on the circumstances.
8. Other Model of Mediation / Lawyer inclusive Mediation
The mediation sessions are structured and usually go for between 2 to 4 hours, with some mediators running full-day sessions. We don’t offer that at Interact Support. We feel they are too exhausting and risk “agreement by exhaustion” rather than sound agreements that will help you to resolve the issues permanently.
Some other options are available depending on the needs in your situation.
Shuttle mediation means that you do not speak directly but are instead in separate rooms, real or virtual, and the mediator takes information back and forward between you. It is harder to get a deep understanding of the other persons perspective on the issues with this model but may be necessary if someone does not feel emotionally safe speaking directly with the other side.
Lawyer Inclusive mediation is another common approach. In this both sides have a lawyer present during the mediation. The role of the lawyer is to listen and advise. They generally are not invited to speak for you as it is important to understand your perspective on the issues which isn’t something the lawyer knows more than you do. This is particularly well suited when there are complex financial or conflicting legal advice as everything can get out on the table and be evaluated. Sometimes single experts such as accountants or valuers are asked to provide their professional advice or even attend a session of the mediation process.
Sometimes people bring other family members or supporters to the mediation. This needs to be discussed and agreed in advance and the mediator will generally speak with your support people in advance so they understand their role is not to be an advocate for you but rather to be there to support you.
Next Steps
If you would like to find out more about mediation with Interact Support get in touch.