LLB103 Lecture Notes - Lecture 5: Risk Assessment, Best Alternative To A Negotiated Agreement, Queensland Newspapers
LLB103 DISPUTE RESOLUTION LECTURE 5
MEDIATION
●Mediation is a process that promotes the self-determination of participants (defined as: reaching a
voluntary, uncoerced agreement) and in which participants, with the support of a mediator:
○Communicate with each other, exchange information and seek understanding
○Identify, clarify and explore interests, issues and underlying needs
○Consider their alternatives
○Generate and evaluate options
○Negotiate with each other; and
○Reach and make their own decisions
●A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes (MSB
Practice Standards, 2015, section 2.2).
CAN MEDIATOR’S EVALUATE?
●10.2 (Practice Standards) Where a mediator uses a blended process such as advisory or evaluative
mediation or conciliation, which involved the provision of advice, the mediator must:
a. Obtain consent from participants to use the blended process
b. Ensure that within the professional area in which advice is to be given, they
i. Have current knowledge and experience;
ii. Hold professional registration, membership, statutory employment or their equivalent, and
iii. Are covered by current professional indemnity insurance or have statutory immunity and
c. Ensure that the advice is provided in a manner that maintains and respects the principle of
self-determination.
PURPOSE OF THE MEDIATION PROCESS?
●A third party supports the parties in dispute to negotiate a mutually satisfactory outcome.
●Foundational philosophies include:
○Party self-determination and empowerment
○Mediator neutrality/impartiality
■It might not be possible for a mediator to be “neutral” in the sense of the word but
more likely impartial. When browsing the MSB, the word neutrality is not mentioned
once but the word impartiality is and that speaks the idea that impartiality is possible
and desirable.
○Mutual, relational process
■2 parties working together as opposed as each sticking up for their own interests and
not taking into account the interests of the other party.
○Remedial imaginations, tailored outcomes
■ RI → a phrase coined by Carrie Menkel-Meadow = parties can use
their own imagination to remediate their own disputes.
○Interests can be served, positions can be contextualised and broken down.
WHAT IS THE MSB AND WHY IS IT IMPORTANT?
●MSB = Mediator Standards Board
●The creation of one central entity responsible for mediator standards and accreditation in Australia.
●To fulfil its function, the MSB has developed the National Mediator Accreditation System (NMAS). This
system includes rules for the accreditation and practice of mediation in Australia.
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MSB II
●Approval Standards which specify the training, assessment, personal qualities and experience required
of a NMAS accredited mediator and for their renewal of accreditation.
●Practice Standards which specify the minimum practice and competency requirements of a NMAS
accredited mediator.
●Recognised Mediator Accreditation Bodies (RMABs) which accredit mediators according to the
Approval and Practice Standards.
The Dispute Resolution Spectrum
Facilitative Processes Advisory Processes Determinative Processes
Walk away
or keep it
Negotiation Mediation Conciliation Case
Appraisal
Arbitration Litigation
*NOTE: Mediation can be facilitative or advisory depending on the type of model.
KEY STEPS OF MEDIATION
●Intake
●Mediator’s opening
●Parties’ statements
●Summaries and common ground
●Agenda
●Exploration
●Private caucus
●Negotiation
●Agreement
PRE-MEDIATION/INTAKE PHASE
●Intake process undertaken by either:
○Mediator or
○Administrative officer
●Prior meeting/s or telephone conversation/s to:
○Understand dispute
○Ensure process is suitable, assess party capacity to participate in the process and authority to
settle, screen and assess inappropriate matters.
○Discussion of process and costs
○Reading and signing Agreement to Mediate
○Ensure parties come prepared
●See for example: Linda Kochanski, ‘Family dispute resolution: The importance of an intake’ (2011) 1(3)
Family Law Review 164-167.
MEDIATOR’S OPENING STATEMENT
●To explain the process and its objectives
●To clarify the roles of the mediator and the parties
●To clarify the non-adversarial role of lawyers (if present)
●To set some guidelines/ground-rules for conduct during the process
●To explain process ethics such as the independence of the mediator and confidentiality
○As far as the law allows
●To agree on time-frames and any time restraints
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