How our mediation process works

Mediation is a key tool used by the VSBC to resolve disputes. Mediation is a process of negotiation that assists the parties involved in a dispute to identify and explore options to resolve it.

As part of the VSBC’s mediation process, you will be brought together at an agreed time and location with an experienced, independent mediator appointed by the VSBC where you will discuss your dispute.

The VSBC’s mediation process:

  • seeks to resolve the issues in dispute between parties;
  • maintains the parties’ commercial relationship;
  • and allows everyone to ‘get on with business’.

Why choose mediation

There are many reasons why mediation is a good option when you have a dispute that is affecting your business.

  • It is effective. Around 30% of disputes are resolved through preliminary assistance over the phone or email. Of the disputes that proceed to mediation, around 80% reach a resolution.
  • It is empowering. By being engaged in the process, the parties are in control of the outcome. The solutions are flexible, creative and business driven.
  • It is affordable. Mediation is low cost when compared to preparing for and attending litigation.
  • It is efficient. Mediation is a speedy solution that won’t disrupt your business. Most mediation sessions take around 3 to 4 hours.
  • It is informal, but structured. Mediations are conducted in a meeting room with the parties seated around a table. You do not need legal representation (although you can have a lawyer present, if you wish).
  • It is less stressful. Mediation is a less stressful alternative to litigation. Coming together in mediation enhances the likelihood of continuing the business relationship.
  • It is confidential. The discussions that occur during the mediation cannot be used by the parties in any other legal proceedings. Litigation, on the other hand, results in a public record.
  • It is voluntary.  You don’t need to attend to a mediation request. However, if you receive a letter from the VSBC, you must respond to it within the stated timeframe. If you refuse to engage with the VSBC, a certificate may be issued. The implications of a certificate vary according to the type of dispute.

 

What is the role of the mediator?

The VSBC appoints an independent mediator to:

  • help the parties communicate openly;
  • help identify options; and
  • help the parties to reach their own agreement for settlement.

It is important to note that mediators:

  • are not judges;
  • do not decide who is ‘right’ or ‘wrong’;
  • do not give binding judgements; and
  • do not give the parties legal advice.

The mediator will not hand down a decision, but rather help the parties to reach their own agreement, encouraging win-win outcomes.

The VSBC's mediation process

The following steps are typical of the VSBC’s mediation process.

Note: Different mediators or locations may slightly alter these steps.

1.

Upon arrival to the mediation venue, each party is seated in separate, private breakout rooms.

2.

The mediator enters each breakout room and introduces themselves to each party. They have a short private discussion with each party.

3.

The mediator invites both parties into the main mediation room.

4.

The mediator explains the mediation process to both parties.

5.

In turn, the mediator invites each party to explain their position and understanding of the dispute.

6.

The mediator may ask questions to clarify a party’s situation or argument.

7.

During mediation, a party should direct any questions through the mediator rather than to the other party.

8.

The mediator attempts to simplify and clearly identify the key issues in the dispute.

9.

The mediator asks each party to return to their separate breakout rooms.

10.

The mediator moves between the parties. During this phase they are seeking options that may resolve the dispute, clarifying positions and identifying opportunities for compromise, negotiation, or creative alternatives, until a decision is reached to settle or not.

11.

If mediation results in a settlement, Terms of Settlement are drawn up. All parties confirm and sign the terms.

12.

If settlement is not achieved, mediation ends, and either party may request a certificate to take the matter to VCAT. The mediation may also be adjourned if the mediator or parties consider that it may assist in resolving outstanding issues (the process differs here with Farm Debt Mediation matters – click here for details)

13.

Mediation is concluded.

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