Mediation in Australia
Encyclopedia
Mediation
in the multi-cultural society of Australia
, as a form of dispute resolution
, may involve understanding the role that culture
plays.
Cultural differences often exist due to race and ethnicity, but can also arise from religion
, gender
, age, sexual orientation
and disabilities.
Major concerns in cross-cultural dispute-resolution include perceived power-imbalance — often escalated by communication-difficulties, misconceptions, negotiation
-behaviour, face-saving and the publicity
surrounding the dispute.
lacks cultural literacy
across different cultures or awareness of parties having difficulties during the mediation due to differences in culture, then the mediator’s lack of understanding or misunderstanding could cause a breakdown in the negotiation
-process. Cultural awareness ensures that mediators can adapt their skills and techniques to ensure that they can maintain their standard of care
throughout the mediation process.
Native-title mediation differs from regular mediation in that, rather than the parties referring a dispute to mediation, the Federal Court of Australia
can also determine whether the National Native Title Tribunal
should mediate a matter. Other distinctive features occur: often native-title mediations can involve up to one hundred participants; lawyers play a minimal role; and rather than making technical legal points the speakers for the Aboriginal
and Torres Strait Islands
people often talk about their family genealogies, traditions, dreaming and stories to support their claims.
The National Native Title Tribunal
does not decide whether native title exists over land in question: rather it has the role of mediating contested applications and applications for compensation
which originated in the Federal Court of Australia
. More importantly, the parties must mandatorily attend a native-title mediation unless the court
has granted leave.
However, the parties can apply for the termination
of the mediation at any time later than three months after the commencement of the mediation.
Due to the large number of applicants in native-title applications, the process of mediation differs somewhat from that of other mediations. The National Native Title Tribunal takes a more "outcome-focused" approach.
In the course of a number of pre-mediation meetings the mediator obtains information from the parties in relation to the claim itself and tries to obtain information from the parties regarding their interests in the claim and any other matters which may have relevance to the mediation.
it amicably and fairly by triggering the requirement for the parties to use the mediation
process (as opposed to the court system).
As more Australia
n companies
realise the benefits of settling
commercial
disputes out-of-court, many companies include compulsory mediation-clauses in their contracts. Such benefits include avoiding negative publicity
that can often entail following a trial
, reduced legal fees and less time spent by management
with lawyers.
Contracts which could include mediation
-clauses include franchise
-agreements, commercial contracts, building
and construction
agreements, finance
and lease
agreements and joint ventures. Standard mediation-clauses appear on the websites of professional associations and of mediation-agencies; however mediators may draft some clauses to suit specific circumstances, for example if the parties reside
in different countries.
Standard mediation-clauses generally provide — in the event of a dispute — for the referral of the matter to a mediator, and make it subject to the rules of mediation. Further, standard clauses will often specify an alternative if the parties fail to reach agreement within a specified time. Most importantly, such clauses allow for the continuation
of the contract notwithstanding the current dispute.
Note that the Australian court
s, in times, have declared a number of mediation-clauses void
due to poor drafting. The reasons the courts have cite
d for declaring the mediation clauses void include, for example:
Mediators may therefore obtain legal advice
when drafting such clauses to ensure their enforceability.
In Australia, once parties have decided to participate in a mediation, the majority
of mediators will require them to sign a document commonly known as an "agreement to mediate". Agreements to mediate represent an important step in the mediation-process because parties participating in mediation often have different views and expectations in relation to the mediation-process, the mediator’s role and the parties’ role.
"Agreements to mediate" include clauses in relation to:
Importantly, agreements to mediate provide both the mediator and the parties to the mediation with a contract
which, if breached, will give rise to remedies for breach of contract
.
Many Australian government
agencies, professional and industry-bodies and mediation-agencies provide pro-forma agreements to mediate on their web-sites. The mediator should ensure that the parties understand the terms of the agreement before executing it. Mediators should also give the parties an opportunity to ask questions and suggest changes.
Once the parties express themselves content with the agreement to mediate, the mediator should arrange for its signing and dating prior to the commencement of the mediation.
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
in the multi-cultural society of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, as a form of dispute resolution
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...
, may involve understanding the role that culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
plays.
Cultural differences often exist due to race and ethnicity, but can also arise from religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
, age, sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
and disabilities.
Major concerns in cross-cultural dispute-resolution include perceived power-imbalance — often escalated by communication-difficulties, misconceptions, negotiation
Negotiation
Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy...
-behaviour, face-saving and the publicity
Publicity
Publicity is the deliberate attempt to manage the public's perception of a subject. The subjects of publicity include people , goods and services, organizations of all kinds, and works of art or entertainment.From a marketing perspective, publicity is one component of promotion which is one...
surrounding the dispute.
Native title mediation
Native title in Australia has frequently given rise to mediation. If a mediatorMediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
lacks cultural literacy
Cultural literacy
Cultural literacy is familiarity with and ability to understand the idioms, allusions, and informal content that create and constitute a dominant culture. From being familiar with street signs to knowing historical references to understanding the most recent slang, literacy demands interaction with...
across different cultures or awareness of parties having difficulties during the mediation due to differences in culture, then the mediator’s lack of understanding or misunderstanding could cause a breakdown in the negotiation
Negotiation
Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy...
-process. Cultural awareness ensures that mediators can adapt their skills and techniques to ensure that they can maintain their standard of care
Standard of care
In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care.The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually...
throughout the mediation process.
Native-title mediation differs from regular mediation in that, rather than the parties referring a dispute to mediation, the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
can also determine whether the National Native Title Tribunal
National Native Title Tribunal
The National Native Title Tribunal is an independent body that assists people to reach timely and effective outcomes for disputes about native title in Australia....
should mediate a matter. Other distinctive features occur: often native-title mediations can involve up to one hundred participants; lawyers play a minimal role; and rather than making technical legal points the speakers for the Aboriginal
Australian Aborigines
Australian Aborigines , also called Aboriginal Australians, from the latin ab originem , are people who are indigenous to most of the Australian continentthat is, to mainland Australia and the island of Tasmania...
and Torres Strait Islands
Torres Strait Islanders
Torres Strait Islanders are the indigenous people of the Torres Strait Islands, part of Queensland, Australia. They are culturally and genetically linked to Melanesian peoples and those of Papua New Guinea....
people often talk about their family genealogies, traditions, dreaming and stories to support their claims.
The National Native Title Tribunal
National Native Title Tribunal
The National Native Title Tribunal is an independent body that assists people to reach timely and effective outcomes for disputes about native title in Australia....
does not decide whether native title exists over land in question: rather it has the role of mediating contested applications and applications for compensation
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
which originated in the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. More importantly, the parties must mandatorily attend a native-title mediation unless the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
has granted leave.
However, the parties can apply for the termination
Terminate
Terminate was a shareware modem terminal and host program for MS-DOS and compatible operating systems developed from the early to the late 1990s by the Dane Bo Bendtsen...
of the mediation at any time later than three months after the commencement of the mediation.
Due to the large number of applicants in native-title applications, the process of mediation differs somewhat from that of other mediations. The National Native Title Tribunal takes a more "outcome-focused" approach.
In the course of a number of pre-mediation meetings the mediator obtains information from the parties in relation to the claim itself and tries to obtain information from the parties regarding their interests in the claim and any other matters which may have relevance to the mediation.
Mediation-clauses and the mediation-process
Mediation-clauses aim to ensure that if a conflict arises the parties will settleSettle
Settle is a small market town and civil parish within the Craven district of North Yorkshire, England. It is served by the Settle railway station, which is located near the town centre, and Giggleswick railway station which is a mile away. It is from Leeds Bradford Airport...
it amicably and fairly by triggering the requirement for the parties to use the mediation
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
process (as opposed to the court system).
As more Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n companies
Company
A company is a form of business organization. It is an association or collection of individual real persons and/or other companies, who each provide some form of capital. This group has a common purpose or focus and an aim of gaining profits. This collection, group or association of persons can be...
realise the benefits of settling
Settling
Settling is the process by which particulates settle to the bottom of a liquid and form a sediment. Particles that experience a force, either due to gravity or due to centrifugal motion will tend to move in a uniform manner in the direction exerted by that force...
commercial
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...
disputes out-of-court, many companies include compulsory mediation-clauses in their contracts. Such benefits include avoiding negative publicity
Publicity
Publicity is the deliberate attempt to manage the public's perception of a subject. The subjects of publicity include people , goods and services, organizations of all kinds, and works of art or entertainment.From a marketing perspective, publicity is one component of promotion which is one...
that can often entail following a trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
, reduced legal fees and less time spent by management
Management
Management in all business and organizational activities is the act of getting people together to accomplish desired goals and objectives using available resources efficiently and effectively...
with lawyers.
Contracts which could include mediation
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
-clauses include franchise
Franchising
Franchising is the practice of using another firm's successful business model. The word 'franchise' is of anglo-French derivation - from franc- meaning free, and is used both as a noun and as a verb....
-agreements, commercial contracts, building
Building
In architecture, construction, engineering, real estate development and technology the word building may refer to one of the following:...
and construction
Construction
In the fields of architecture and civil engineering, construction is a process that consists of the building or assembling of infrastructure. Far from being a single activity, large scale construction is a feat of human multitasking...
agreements, finance
Finance
"Finance" is often defined simply as the management of money or “funds” management Modern finance, however, is a family of business activity that includes the origination, marketing, and management of cash and money surrogates through a variety of capital accounts, instruments, and markets created...
and lease
Lease
A lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
agreements and joint ventures. Standard mediation-clauses appear on the websites of professional associations and of mediation-agencies; however mediators may draft some clauses to suit specific circumstances, for example if the parties reside
Home
A home is a place of residence or refuge. When it refers to a building, it is usually a place in which an individual or a family can rest and store personal property. Most modern-day households contain sanitary facilities and a means of preparing food. Animals have their own homes as well, either...
in different countries.
Standard mediation-clauses generally provide — in the event of a dispute — for the referral of the matter to a mediator, and make it subject to the rules of mediation. Further, standard clauses will often specify an alternative if the parties fail to reach agreement within a specified time. Most importantly, such clauses allow for the continuation
Continuation
In computer science and programming, a continuation is an abstract representation of the control state of a computer program. A continuation reifies the program control state, i.e...
of the contract notwithstanding the current dispute.
Note that the Australian court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s, in times, have declared a number of mediation-clauses void
Void (law)
In law, void means of no legal effect. An action, document or transaction which is void is of no legal effect whatsoever: an absolute nullity - the law treats it as if it had never existed or happened....
due to poor drafting. The reasons the courts have cite
Citation
Broadly, a citation is a reference to a published or unpublished source . More precisely, a citation is an abbreviated alphanumeric expression Broadly, a citation is a reference to a published or unpublished source (not always the original source). More precisely, a citation is an abbreviated...
d for declaring the mediation clauses void include, for example:
- whether the clause survives the termination of the agreement
- a sufficiently certain clause
- whether the parties agreed to mediate in good faithGood faithIn philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
- in complete mediation
Mediators may therefore obtain legal advice
Legal advice
In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court , ordinarily in exchange for financial or other tangible compensation...
when drafting such clauses to ensure their enforceability.
In Australia, once parties have decided to participate in a mediation, the majority
Majority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
of mediators will require them to sign a document commonly known as an "agreement to mediate". Agreements to mediate represent an important step in the mediation-process because parties participating in mediation often have different views and expectations in relation to the mediation-process, the mediator’s role and the parties’ role.
"Agreements to mediate" include clauses in relation to:
- the appointment of the mediator
- the mediator’s roleRoleA role or a social role is a set of connected behaviours, rights and obligations as conceptualised by actors in a social situation. It is an expected or free or continuously changing behaviour and may have a given individual social status or social position...
- the scopeScopeThe word scope may refer to many different devices or viewing instruments, constructed for many different purposes. It may refer to a telescopic sight, an optical device commonly used on firearms. Other uses of scope or Scopes may refer to:...
and conductBehaviorBehavior or behaviour refers to the actions and mannerisms made by organisms, systems, or artificial entities in conjunction with its environment, which includes the other systems or organisms around as well as the physical environment...
of the mediation - conflicts of interestConflicts of Interest"Conflicts of Interest" is an episode from the fourth season of the science fiction television series Babylon 5.-Arc significance:* Garibaldi begins to work for William Edgars. In the process Garibaldi is reintroduced to his ex-girlfriend, Lise, who is currently married to Edgars.* The "Voice of...
- the roles of the parties
- confidentialityConfidentialityConfidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
and privilegePrivilegeA privilege is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. It can be revoked in certain circumstances. In modern democratic states, a privilege is conditional and granted only after birth... - the mediator’s fees
- liabilityLegal liabilityLegal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
and indemnityIndemnityAn indemnity is a sum paid by A to B by way of compensation for a particular loss suffered by B. The indemnitor may or may not be responsible for the loss suffered by the indemnitee... - authorityAuthorityThe word Authority is derived mainly from the Latin word auctoritas, meaning invention, advice, opinion, influence, or command. In English, the word 'authority' can be used to mean power given by the state or by academic knowledge of an area .-Authority in Philosophy:In...
to settleSettleSettle is a small market town and civil parish within the Craven district of North Yorkshire, England. It is served by the Settle railway station, which is located near the town centre, and Giggleswick railway station which is a mile away. It is from Leeds Bradford Airport... - termination of the mediation
- settlement of the dispute
- enforcement of any settlement-agreement reached
Importantly, agreements to mediate provide both the mediator and the parties to the mediation with a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
which, if breached, will give rise to remedies for breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
.
Many Australian government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
agencies, professional and industry-bodies and mediation-agencies provide pro-forma agreements to mediate on their web-sites. The mediator should ensure that the parties understand the terms of the agreement before executing it. Mediators should also give the parties an opportunity to ask questions and suggest changes.
Once the parties express themselves content with the agreement to mediate, the mediator should arrange for its signing and dating prior to the commencement of the mediation.