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Introduction |
You have either requested or have been directed to attend mediation
before the LRT. These notes will help you prepare for the mediation.
In mediation, an independent person (the Mediator) assists parties to
discuss the dispute, consider options for resolving it and, ideally,
to reach agreement. It is based on the view that the parties
themselves are in the best position to resolve the dispute, if
assisted to do so. You know more about your problem than anyone else
does. You know what is important to you. You know which solutions will
work for you. Mediation provides you with an opportunity to have your
say and to communicate with the other parties directly in an informal
but structured setting.
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LRT Mediation Objectives |
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The LRT's objectives for mediation are to: |
- facilitate parties resolving disputes themselves;
- provide a fair mediation process;
- provide an expeditious process;
- provide an effective process;
- provide a cost-effective process; and
- provide an informal process.
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Who is the Mediator? |
The LRT has chosen a Mediator who has been appropriately trained and
has relevant experience. In some cases your mediator will be a Member
of the LRT itself. In difficult cases, or cases involving a large
number of issues or parties, the LRT will appoint more than one
Mediator. The Mediation Co-ordinator of the LRT will inform you of the
details of your mediation.
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What IS the Role of the Mediator? |
The Mediator's role is to assist the parties to reach an agreement. To
do this, the Mediator will help you and the other parties to:
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- Work out what the dispute is about
Isolating the issues in the dispute can help you resolve the
dispute or prepare for the hearing before the LRT.
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- Develop and explore options for resolving the issues in
dispute
The Mediator encourages a co-operative problem solving
approach and discourages parties from adopting rigid positions. The
Mediator will help parties to test whether the options are workable
and adequately meet their needs.
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- Reach an agreement
The term "win-win" is often used in
connection with mediation. However most agreements are compromises
and parties do not always get everything they would ideally like.
However, the aim is to reach an agreement that you and the other
parties can live with and will abide by. The Mediator(s) can
terminate the mediation if they consider further mediation will not
lead to resolution of an issue or the dispute. The Mediator(s) must
discuss this first with the parties.
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What IS NOT the Role of the Mediator? |
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The Mediator's role is not to make the decision for the parties.
Therefore, the Mediator will not: |
- Provide legal advice (even if they are legally qualified);
- Advise on the solution;
- Advise on the legal avenues available to any party or on the
prospects of success;
- Advise, encourage or coerce a party to accept a particular
solution;
- Make the decision for the parties.
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Further information about the Mediator's roles and obligations are
contained in the Mediator's Code of Conduct.
Click here to access the
Code of Conduct.
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Are Mediations Confidential? |
The Mediator must treat everything that happens in mediation as
confidential, except in limited circumstances (section 73 LRT Act). You may see a Mediator or
their assistant taking notes during the mediation. These notes are an
aide memoire for the Mediator and are not a record of the mediation.
Evidence of anything said or done or any admissions made during a
mediation can only be admitted in legal proceedings if all the
mediation participants agree (section 75 LRT Act). Mediators will not
discuss what occurs during a mediation with the Presiding Member for
the case. This applies whether the Mediator is a Member of the LRT or
not. The Mediator is required to provide a written report to the
Presiding Member by a date specified by the LRT. The Mediator will
discuss the terms of the report with the participants in general terms
and will provide you with a copy of that report.
Click here to access
a Pro Forma Mediation Report.
Parties involved in native title negotiations about mining and
infrastructure projects need to be aware of the requirements in the
Mineral Resources Act 1989 and the Native Title Act 1993 (Cth) to
negotiate in good faith. If there is a subsequent dispute about
whether the negotiations have been conducted in good faith, it is
possible that the LRT will have to receive evidence of what took place
in the mediation. Neither the LRT nor the mediators can advise you in
detail about this. Independent legal advice may need to be obtained.
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What are the Parties' Obligations in the Mediation? |
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As well as the duty to negotiate in good faith referred to above,
parties have obligations in all mediations, regardless of the subject
matter of the dispute. They are: |
- not to impede the mediation process (by failing to attend,
participate or pay an amount as specified in the referral order
(Uniform Civil Procedure Rules (UCPR) rule 322); and
- to act reasonable and genuinely in the mediation and to help the
mediators achieve the time frames imposed on the mediation (UCPR
rule 325).
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Who Should Attend the Mediation? |
This is something the Mediator will discuss with you. If you are
represented, you should also discuss this with your lawyer or other
representative. If a party is a company or association, it is
extremely important to clarify who is attending and what authority
they have to speak on behalf of the company or association. If a party
is a government agency, the officer who attends is usually not in a
position to speak for the Director-General or the Minister. It is
critical for such officer to clarify what their role is and what
procedures they will have to follow in order to obtain approvals
arising out of the mediation.
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Can Lawyers or other Representatives Participate in a Mediation? |
The Mediator can decide whether a party may be represented in a
mediation and, if so, by whom (rule 326(2) UCPR).
The LRT can also make directions about representation in the order
referring the matter to mediation. A representative is not expected to
speak for their client or to act as an advocate. The representative's
role is to assist and advise their client during the mediation. For
more information about the role of lawyers and of legal issues in
mediation click here.
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Can the Parties Negotiate Directly while a Mediation is Under Way? |
The LRT encourages parties to continue to discuss matters directly.
Mediation is not intended to replace direct communication. It provides
a forum where parties are assisted to discuss the dispute in a
structured way. During the course of a mediation (which could involve
a number of sessions over a period of time), the Mediator may suggest
the parties or representatives of the parties meet between sessions to
work on particular issues or options. If a Member of the LRT is the
Mediator, an LRT officer, usually the Mediation Co-ordinator will
assist. The officer's role is to support the Mediator, not the parties
to the mediation. Requests for the LRT officer to copy or distribute
material will be referred to the Mediator. The LRT officer is required
to observe the same obligation of confidentiality as the Mediator.
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What is the Format for the Mediation? |
The Mediator will outline the format at the beginning of the
mediation. Generally it will involve the following steps:
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- Introduction by the Mediator
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- Opening statements by the parties
You and the other parties state what the dispute is about and what you
would like to achieve from the mediation.
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- Agenda setting
The Mediator will discuss with you a list of issues and an order for
discussion, based on what you and the other parties say in the opening
statements.
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- Discussion of the list of issues
The focus is on
discussing the issues, although options for resolving the dispute
are likely to be considered as well;
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- Private sessions
The Mediator may meet with you and the other parties, with or
without your representatives, together or separately (rule 236(3) UCPR).
If the Mediator meets with a party, with or without their
representatives, it is referred to as a private session or caucus.
It is an opportunity for the parties to raise confidential matters
and for the Mediator to check that you have had the opportunity to
discuss all relevant matters. This usually happens after discussion
of the issues. Anything said in private session is confidential and
cannot be disclosed to any other party. Sometimes the Mediator will
meet with only the party's legal or other representatives, if they
consider this may advance the prospects of resolution. There is no
requirement for the Mediator to give parties equal time in private
sessions. This will be governed by the Mediator's assessment of what
time is required.
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- Negotiation
During negotiation, the focus is on
reaching an acceptable solution. Options raised during discussion
will be examined more closely to see if they meet your needs and
those of the other parties. Parties may raise matters they discussed
with the mediator during a private session.
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- Agreement Writing
If agreement can be reached, the
Mediator will assist you and the other parties to record the
agreement and to ensure that the agreement covers all the issues you
want dealt with and is detailed enough to be implemented. The
agreements will be written and signed by all parties. Unless the
parties otherwise agree, the mediation agreement must be sealed on
the LRT's file, marked not to be opened without an order from the
LRT (rule 329 UCPR). However, the parties may not wish the agreement, or
all of it, to be confidential. The agreement may involve a joint
approach to the Presiding Member for orders to be made in terms
agreed by the parties.
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- Transition to a hearing
If agreement cannot be reached,
the Mediator will discuss with you and the other parties the
procedures in the LRT so that you are better prepared for the
hearing. Click here to access the guide to Mediators on transition
to a hearing.
Parties can, at any time, apply to the LRT for directions on any
issue about the mediation (UCPR rule 327).
In some cases it will be useful to inspect land, property, sites or
operations that relate to the dispute. If you think this will assist
the mediation you should raise it with the Mediator. In some cases,
the Mediator will arrange for the mediation to be conducted on site,
to make it easy to conduct an inspection.
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What Obligations do Parties have in a Mediation? |
The parties must act reasonably and genuinely in the mediation and
must help the Mediator start and finish the mediation within the time
estimated or set in the referring order (rule 325 UCPR).
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How Long will the Mediation Last? |
You are likely to have some contact either in person or by telephone
with the Mediator or their assistant to discuss arrangements for the
mediation and to clarify the issues in dispute. A standard mediation
session is about 4 hours. Depending on the number of parties and the
number and nature of the issues in dispute, there may be one session
or there may be a number of sessions over a period of time. The
Presiding Member who refers the matter to mediation may nominate a
report back date at which time the Mediator will be expected to report
on the progress of the mediation.
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Who Pays for the Mediation? |
The LRT may cover the Mediator's fees of the first 4 hour mediation
session. That will usually be dealt with in the order referring the
matter to mediation. Otherwise, either when the matter is referred to
mediation, or after the first session, the parties will need to obtain
an order from the LRT about how the mediation costs will be dealt
with. Applications for orders about the mediation can be made to the
LRT at any time.
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Conclusion |
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The best way to prepare for mediation is to ask: |
- What is this dispute really about?
- What do I want out of the mediation?
- What do the other parties want out of the mediation?
- What information have I got that is relevant?
- What are the options for resolving this dispute, taking into
account the needs of all parties?
- What is my best alternative to settling this at mediation?
- What is my worst alternative to settling this at mediation?
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