Mediation is commonly used in resolving personal injury compensation claims.
Why do we use mediation?ediation is a guided process that seeks to find resolution of an issue, or issues between two or more parties. In Australia mediation is almost always facilitated prior to entering a courtroom. The court system has become choked with small claims and lead times to trials have blown out to years of waiting. Mediation has become standard practice for any divorce settle proceedings and is used extensively in resolving issues of personal injury compensation.
Mediation is conducted before a panel of mediators. There are a variety of mediation systems and depending on the system in place there may be one, two or three mediators on that panel.
Mediation Ground Rules.
Initially the mediators will outline the process of mediation. They will set the ground rules by which the process will be conducted and outline how the parties in dispute will relate to one another. The mediators role is to ensure that both parties are fairly heard and that all of the opposing viewpoints are examined. They also ensure that the mediation process is conducted free from vitriol. Parties engaged in a mediation process must conduct themselves with respect not only for the mediators and the process but also with respect for the party they are in dispute with. This can be one of the more challenging aspects of conducting mediation where emotions may become agitated. Sometimes a mediator will call a recess to the process to give one or both of the parties an opportunity to calm themselves before continuation.
Both sides of a dispute will present a statement detailing the key areas of the contention. Your personal injury barrister will make your case on your behalf at this stage. This will be a brief summary of the dispute and outline the most problematic issues. Sometimes the mediators will make a statement as an overview to encapsulate the issue and have both parties agree to that statement such that everyone has a clear understanding of what is at stake.
Then the mediators will gather the opposing views of the parties in dispute and often record them on a white board or similar display system such that all parties can see all of the issues clearly. The two parties will have an opportunity to present all of the evidence necessary for making their case and have that evidence noted and logged by the panel of mediators. Each side will be given sufficient opportunity to make their case and present supporting documentation and statements. Sometimes one of the parties does not have all of the necessary support documentation to present at the time of mediation. They may be given opportunity to source this evidence and have the mediation recessed until such time they have everything that they need to proceed with their case. This is not an ideal situation and many mediators will, depending on the circumstances, take a dim view of an unprepared case, as both parties will have been given extensive notice of the mediation.
Once all of the points of contention are aired and recorded the mediators will attempt to negotiate resolution on those points. Key areas of dispute will be identified by the panel The parties involved will be asked what issues they are prepared to negotiate on and which matters are not negotiable. Often parties will have points of contention that they declare are not negotiable. These core issues are often left until later in the mediation process. Most mediators will initially attempt to gain small concessions from both parties before proceeding to the more intractable issues.
A document is tabled by the panel of mediators that attempts to gain concessions from both parties about major issues. This document will make its way back and forth with parties attempting to come to a resolution. On occasion the mediators will call a recess and speak to one of the parties in private to facilitate the process. This will give the parties the opportunity to air fears about agreeing to concessions and give the panel of mediators an opportunity to understand what is blocking the pathway to agreement. Often once the fears and concerns are aired the panel of mediators are able to gain reassurances from both parties about the deeply held concerns.
Once both parties have given concessions or compensation and gained agreements addressing their concerns and alternate solutions have been agreed upon a binding document is signed and the process of mediation is summarised and the parties go on with their lives and do their best to adhere to the agreement.
In many cases the process of mediation is able to successful resolve difficult disputes, and whilst it is sometimes the case that neither party gets exactly what they want, they often gain a result that they both can live with.