Mediation offers a regulated forum for parties to try to settle their differences by reaching an agreement. If successful, the heavy costs of litigation (money, time and emotional energy) can be avoided.
A mediator is a neutral person who assists the parties to reach their own agreement. The mediator will usually not express a view about the merits of the matter. Nothing the mediator does or says is binding on the parties. The mediator decides nothing. A dispute is settled when the parties reach their own agreement.
It is a process that is now much in demand. If there is no settlement, then the parties' rights are not affected, and, because it is confidential, nothing said during the mediation can be used if the matter is not settled.
The Victorian Bar as a Recognised Mediator Accreditation Body accredits mediators who are professionally trained in the special skills required of a mediator and in accordance with the standards of the National Mediator Accreditation System (NMAS) administered by the Mediator Standards Board.
Click here to use the Find a Barrister search tool to find Victorian Bar members who are nationally accredited mediators.
For initial accreditation, an intending mediator will need to satisfactorily complete a mediator education and training course that meets the requirements of the Australian National Mediator Accreditation System Part II Approval Standards.
The Bar application form under the Australian National Mediator Standards by a non-accredited mediator requires copies of certificates of attendance at a mediator education and training course and of satisfactory assessment under Part II of the NMAS Approval Standards.
Nationally accredited mediators are required to renew their accreditation every two years and to have met the continuing accreditation requirements in Part II (3) of the NMAS Approval Standards referred to above, using the re-accreditation application form.
By agreement with the other disputing parties, you can appoint any of the Victorian Bar’s barristers as a mediator. We recommend that you use one of the Bar's advanced or accredited mediators. It may be beneficial to contact one of the clerks to discuss suitability and availability of an accredited mediator on their list.
Fees will be arranged between the parties and the person appointed, and will depend upon the experience and seniority of that person and the duration of the mediation.
Usually, the parties will share the cost of those fees. If a matter can be settled by a procedure such as mediation, then experience shows that the fees paid, and costs incurred, will usually be only a fraction of those payable if the matter were to go to trial in a court.
Many contracts now provide for an attempt at mediation before the litigation or arbitration of any dispute. If you would like your contract to do so, then you should include a clause which aims to compel the parties to attempt mediation before resorting to litigation or arbitration. Members of our Alternative Dispute Resolution Committee are able to suggest a suitable form of mediation clause. If there is a mediation or arbitration clause in the contract, it could provide for the nomination of a mediator or an arbitrator by the President of the Victorian Bar.
We strongly recommend that you obtain advice and assistance from your lawyer before embarking on the mediation process. Advice about your rights is very important. Careful preparation before mediation is usually essential, and often results in a quicker resolution of the dispute.