Guide to mediation
What is mediation?
Mediation is a process of negotiation where disputing parties come together to discuss matters with an independent mediator to identify and explore options for a resolution.
The mediator will not hand down a decision, but rather help the parties to reach their own agreement. The mediator will be appointed by the Small Business Commissioner or the Victorian Small Business Commission.
Benefits of mediation
Mediation is an effective way to resolve an issue and has a high success rate. It is an economical solution, avoiding costly litigation and the associated business disruptions.
It can be arranged within a few weeks after the application is submitted, with most mediations taking less than a full day.
The process empowers participants by allowing them to directly engage in the negotiation of their settlement and therefore be in control of the outcome.
Mediation sessions are informal, but structured, and conducted in a meeting room with all parties seated around a table. The mediator does not apply strict rules but adapts the process to best suit the dispute and the people involved. This approach allows for creative and business-driven solutions rather than legal judgements.
In mediation, parties can address and resolve their issues in a less stressful environment and in a non-confrontational way, enhancing the likelihood of continuing their business relationship.
How to prepare for your mediation
It is essential that you attend the mediation in person, even if you intend to have legal or other representation with you.
Prepare a short statement which tells your side of the story. Avoid minor issues that often arise in disputes.
Think about the outcome you would like to achieve, your immediate needs and what you are willing to compromise to reach a resolution.
Consider having a support person, legal or professional representation, to either attend with you, or be available to talk with you by telephone during the mediation. It is not necessary to have representation during the mediation process, however some parties in mediation feel more comfortable if they are accompanied by a lawyer or another representative.
Interpreters are available no cost. If required, contact the Victorian Small Business Commission and ask for an interpreter to be provided at the mediation.
While the average length of mediation is around 3.5 hours, it may sometimes take half or a full day. Please take this into consideration when making your plans.
If the dispute is resolved, be prepared to sign a written settlement agreement at the end of the mediation.
What to expect on the day
On arrival at our mediation rooms go to the reception area to:
- Sign the Mediation Agreement – these are provided to both parties prior to the mediation.
- Pay the Mediation Fee
- Sign the Confidentiality Form – the mediator will let you know if you are required to sign this form
This will be followed by the mediation.
Introductions – The mediator will formally introduce himself/herself and invite the parties into the main mediation room where he/she will explain the mediation process. In some cases, the mediator may write up an agenda for the mediation.
Parties’ presentations – The mediator will ask each party to present their case and describe the issues in their own words.
Discussion – Once each side has had the opportunity to speak and be heard by all parties, there will be an open discussion of the issues raised. The mediator will help the parties to identify the key issues in dispute and consider possible outcomes.
Private sessions – Following the open discussion of the issues, the mediator may have private sessions with each party to consider options and possible ways of reaching some agreement. It is very important to remember that the mediator helps the parties to think about their options, however they do not provide legal advice or make any decisions. All the decisions are made by the parties themselves. Anything said to the mediator in those private sessions is confidential.
Outcomes – After the private sessions, all parties will meet again to finalise the mediation, either by reaching a settlement agreement or by confirming that agreement cannot be reached.
What happens if agreement is reached
If agreement is reached, a terms of settlement document is drafted, considered and signed by the parties. This is the end of the mediation process. It is important to know that the signed terms of settlement agreement is a binding document and can be enforced by judicial or tribunal proceedings if necessary.
The parties are not obliged to reach an agreement with the other party at the mediation. They should only enter into a settlement agreement if they feel that the outcome reached is their best option in their particular circumstances.
What happens if an agreement is not reached
If your mediation was conducted under the Retail Leases Act 2003 (RLA) or under the Owner Drivers and Forestry Contractors Act 2005 (ODFCA), the parties may wish to commence proceedings at the Victorian Civil and Administrative Tribunal (VCAT). To do that, either party will need to request and obtain a certificate signed by the Victorian Small Business Commissioner.
If your mediation was conducted under the Small Business Commission Act 2017 (SBCA), there is no certificate procedure after a mediation where settlement is not reached. The parties can consider different options of commencing judicial or tribunal proceedings.
Can a mediation be adjourned?
There are situations when the mediation cannot be finalised on the day. If the mediator believes there is a need for the mediation to be adjourned, he or she will advise the parties of this and get their agreement to the adjournment. Mediations can be adjourned to a maximum of 30 days after the initial mediation date.
Client satisfaction survey form
After finishing the mediation session, the parties are requested to fill in and submit a client satisfaction survey.
Your feedback about our mediation services is always appreciated as it helps us to improve our services.
Download the Mediation Guide.