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Mediation basics

Voluntary involvement

The agreement to mediate can come from the parties, or be offered by the Judge. Any party may end the process at any time. You shouldn't feel pressured to be or stay involved.

Active participation in good faith

Effective mediation is conducted face-to-face. Active participation with communication by all parties is essential if you are going to reach an effective agreement. Mediation requires good intentions on the part of all parties, though sometimes the emphasis is better placed on good business and empowerment than goodwill, as parties may not believe the other side can be 'reasonable'.

Driven by you

Mediation assumes that the parties are competent and informed and able to reach agreements that suit their needs. Each party must have at least one representative who is consistent in that role throughout the mediation process. Control of the dispute and the terms of settlement remain in your hands. The representative of each party must be fully authorised to participate. A resolution will only occur if the parties agree.

Inclusive

All parties must be present and all parties must agree to the process. The involvement of people with the authority to make settlements on behalf of others is essential.

Independent and impartial mediator

The mediator acts as a facilitator, communicator, motivator, and scene-setter, creating the right environment for the process to be effective. He or she must be independent of both the parties and the Environment Judge who will review any agreement you reach.

The mediator must not give legal advice, offer opinions or coerce parties into agreement.

The mediator does check that all parties fully understand what they are agreeing to.

Mutual respect

The process allows the parties (including the mediator) to develop a degree of trust and confidence in themselves, in each other, and in the process.

Flexible outcomes

It is open to you to discuss matters outside the appeal. You may want to talk about your business or personal relationships with the other parties. This openness can increase the chances of a satisfactory resolution. You may agree on outcomes that the Court itself is unable to secure such as formal apologies or the recognition of effort.

Confidential process

All discussions that take place in mediation must be completely confidential. In Environment Court mediations no formal record is kept, except an agreed decision (called a consent order) that is approved by the Court and forms part of the public record.

The mediator may meet separately with any party or parties and may be offered information which is to be kept confidential from other parties.

The mediation shall be without prejudice to the dispute and shall not be referred to or relied upon in any other proceedings in the Court.

Protecting your rights

All verbal offers and discussions that take place during the course of mediation don't affect your rights, should issues remain unresolved and disputes proceed to Court.

Finality of agreements

Where agreements are reached they are final, and treated as binding on the parties who have agreed. However, participation in mediation does not prejudice the existing legal rights of the parties.

Fairness and equity

All parties must be given a fair hearing and have equal access to information.

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