Disputes, whether they are between employees or on a commercial level involving your business, can be time-consuming and costly, especially if they involve legal action.
But there is a way to resolve disputes when communication has broken down and you want to preserve the relationship — mediation.
Here’s how your business can benefit.
What is mediation?
Mediation is a process of allowing two or more parties to effectively communicate and make mutually agreed decisions.
Mediation is generally used when communication has broken down. It is voluntary, private, confidential and without prejudice — nothing said in mediation can be used against the other party, or in legal proceedings.
The mediator is neutral and there to facilitate effective communication and a conversation between the parties that allows them to reach their own resolution.
In the event mediation does not resolve the issue, the mediation itself does not prevent parties from taking further action. For example, an employer may run a disciplinary or workplace investigation process if the mediation is unsuccessful.
Mediation can be either:
- Commerical mediation, which involves two or more businesses that are in dispute (i.e., over money or services) and they don’t want to take legal action; or
- Employment mediation, which involves two or more employees that are in dispute (i.e., over a bullying complaint).
CCIWA’s legal team offers both commercial and employment mediation.
What is involved in the mediation process?
CCIWA Workplace Relations lawyer Brianna Stanway, a nationally accredited mediator, follows the following process:
Step 1. A mediator will have a confidential private session with each party (for approximately one hour) to talk about the situation, their interests and their goals for the mediation.
If both parties still want to proceed to mediation (Stanway says sometimes the initial session is enough to resolve the issue), then they will proceed to:
Step 2. A joint session for about three hours where the parties discuss their interests and what is important to them. During that time there is an opportunity to have a private session to check in with each party.
Parties then come to an agreement and decide on what is going to be told to any external parties.
For Employment mediation cases, an outcome can involve the mediator writing up an agreement between both parties, while a commercial mediation outcome can involve a ‘handshake agreement’ written down, or a legal document.
What are the benefits of mediation?
Stanway says mediation preserves the relationship between the parties, which can be very beneficial for ongoing commercial relationships and for employment relationships where employees need to work together.
Other benefits include:
- Parties come to their own decisions and are therefore more likely to stick to them
- The parties have more control over their own decisions
- It's confidential between the parties
- It offers alternative solutions that the legal system might not offer
- It can result in a satisfactory outcome for both parties rather than have one winner and one loser
- It can be cheaper than going through the legal system (commercial: making a claim in a court or tribunal) or (employment: running a formal investigation)
- It provides comprehensive and customised agreements
- It creates a foundation for future problem solving
Stanway says mediation also offers the parties more control over the situation.
“I find people in mediation are a lot more creative than in the legal system, which can be very limited in potential outcomes,” she says.
"We talk about it in mediation as widening the pie; there's more of the pie to go around when you actually get an understanding of what's going on for the other person because there are things you might be able to give that don't cost you anything like an apology, for example.”
On average, for CCIWA Members, CCIWA’s mediation service costs about $2000 for a mediation between two employees. Employment mediation costs are ordinarily paid for by the employer, whereas in commercial mediation, costs are usually split by the participating parties.
The mediation service is run by nationally accredited mediators, with CCIWA’s mediation team offering a free initial chat to discuss the service and whether it’s right for your situation.
For more information on CCIWA’s mediation service contact (08) 9365 7746 or email [email protected].
