Mediation

One option that can be used during the informal resolution process is to seek mediation. Mediation is a way of bringing the parties together to seek a resolution they can all accept.

What is mediation?

Mediation is an informal process for helping people who have disputes to sort them out for themselves. The Mediator provides this help. The Mediator helps by encouraging those in dispute to talk about their concerns to each other. The real problems, large or small, are examined with or without the help of legal advisors. Possible solutions are considered and, where possible, terms of agreement to resolve the dispute are explored. (Courtesy of LEADR website).

Why mediate?

Mediation allows direct discussion of the real differences and a search for practical solutions. The Mediator helps the process along to avoid unpleasant confrontation and unnecessary legal confusion. There is total informality. No solutions are imposed. You agree to settle only if the settlement proposals are acceptable to you. The settlement can be innovative and creative and focus on real interests and future aims. (Courtesy of LEADR website).

How to select a mediator?

If you have decided to use a mediator, it is important to use skilled professionals. Informal approaches give you an opportunity to resolve problems quickly and successfully, but if they are not handled well they could cause further damage to the parties and make resolution more difficult.

Below is a list of questions to ask an external mediator to assist with the selection process.

• What is your understanding of workplace bullying?
• How many mediation sessions involving workplace bullying have you conducted so far?
• What qualifications do you have?
• Are you accredited as a mediator and if so, who with?
• How do you maintain confidentiality?
• Can parties bring support people with them?
• What information do you give each party before the mediation?
• Do you meet with each party separately first?
• Do you ask parties to enter a pre-mediation agreement?
• Do you initially meet with each party to explain the process to them?
• Are your sessions conducted ‘without prejudice’ or are there conditions attached to the outcomes? (The threat of disciplinary action depending on the outcomes for instance may taint the mediation process.)
• How do you assess if parties are ready to mediate?
• What do you do if one party feels unsafe to begin or to continue in mediation?
• How long do you expect a mediation session to go for? (There needs to be some flexibility for all parties including the mediator. It is important to note that mediation sessions that go on for a long time can be very tiring. This could affect any decisions or agreements.)
• Can you explain your process – ie how you mediate?
• What do you charge per hour?
• Do you get parties to sign an agreement at the end of the mediation?
• If yes, what sorts of things would be covered in this agreement?
• What happens if parties can’t reach agreement?
• Do you provide a written report after the mediation and if so who gets to see this?
• Are there any issues that may come out in the course of a mediation session that you would feel bound to report?
• What records do you keep and what happens to these records?

The following organisations specialise in alternative dispute resolution and should be able to assist in finding a mediator suitable for your disputes.

South Australian Alternative Dispute Resolution Association (SADRA)

LEADR Association of Dispute Resolvers

Australian Commercial Disputes Centre

The Institute of Arbitrators and Mediators