THE PROCESS OF THE MEDIATION

Subject to the Rules of the Mediation (which can be found here), the typical process that I adopt for mediation in claims for damages is as follows (noting that the process of a mediation is solely at the discretion of the mediator and my approach will vary if the dispute is not one about, or solely about, damages):

INDUCTION

I induct the parties to the mediation separately - in the induction of the claimant I explain the process of the mediation and the claimant can raise any issues or concerns at that time. Typically, respondent insurers do not require the mediation process to be explained to them, but I also provide opportunity prior to the joint session for the insurer or their representatives to raise any matters that they wish to at that time. If a respondent is uninsured then the induction process would be similar to that conducted with the claimant. It is my preference to induct the parties (and at least the claimant who will typically have had no experience with the mediation process) before the day set for the mediation and I provide for that as a no cost option in my Fee Disclosure and Costs Agreement Document (click here) should a party or parties wish to take that up. I find that inductions undertaken before the day of the mediation can be particularly helpful for a party who is unfamiliar with and anxious about the prospect of mediation. Any practical matters (such as disabilities and access requirements to the premises where the mediation is to be held, should be discussed with me as part of the booking process.

JOINT SESSIONS

Ordinarily, the substantive component of the mediation will commence with a joint session between the parties and mediator. This is the default position but is subject to some flexibility - I may choose not to hold such a session if, in my estimation, the mediation process would be better served without it but would seek feedback from the relevant parties before making any such determination. There may also be occasions where I arrange for a joint session to be between representatives of parties only - this is particularly useful, for example, where allegations of sexual abuse have been made and/or where there is a significant psychological injury.

At the joint session in a damages claim it is typical for:

any housekeeping matters to be addressed first by the mediator;
the claimant's submissions to then be heard;
the respondents to then respond and make submissions;
the claimant to take up any points arising from the respondent's submissions;
the parties' legal representatives to speak for their respective clients (but on some occasions, a representative may wish their client to voice matters directly - it is a matter for the party and their representative).

It is reasonable for a party to assume that the other parties to the mediation have read the material and any pleadings. This assumption is helpful, as the parties can then concentrate on the main issue/issues in dispute - the core of the dispute is usually only one or a small number of issues.

In other forms of mediation - for example facilitated pastoral responses by Church bodies and disputes that are not the subject of a claim for damages, a joint session may take a different path (including as to which party makes an opening statement first), but the essence remains one of communication and dialogue between the parties, facilitated by the mediator.

SEPARATE SESSIONS
& CONFIDENTIALITY

Following a joint session, I will, in claims for damages matters, then separate the parties into their own rooms and mediate between the parties. In that situation, what is said to me by the parties is confidential unless the party allows me to pass information to another party. In other types of mediation - including where there is no claim for damages and where the parties have no legal representatives - I may continue the mediation by way of joint session/joint sessions, until the mediation is at an end, however the process will be determined by me on case-by-case basis.

ABANDONING THE MEDIATION

Under Uniform Civil Procedure Rules r 330 "the mediator may abandon the mediation if the mediator considers further efforts at mediation will not lead to the resolution of the dispute or an issue in the dispute" but before doing so the mediator must:

inform the parties of the mediator's intention; and
give the parties an opportunity to reconsider their positions.

Whilst the Uniform Civil Procedure Rules will not apply to all mediations, it provides a useful guide in such cases.

SETTLEMENT / RESOLUTION / ADJOURNMENTS

In damages claims it is my requirement there will be no settlement or resolution between the parties unless the terms are reduced to writing and signed by the parties. In mediations in matters that do not involve claims for damages there may be agreement without terms signed but I will determine the process on a case-by-case basis. In QCAT Mediations there may be utility in the parties reducing any agreement to proposed Consent Orders or Consent Directions or otherwise as an Agreement in writing - see form-73-mediators-certificate-qcat-mediation-panel.pdf

The mediation is to ordinarily finish within the time allocated for the mediation. The mediator can extend the mediation with the consent of the parties. The mediator may adjourn a mediation to a further time/date.

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