04_Mediation - Dispute Resolution and Legal Ethics 04...

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Dispute Resolution and Legal Ethics 04 – Mediation Page 1 of 12 P ART IV M EDIATION 1 A N I NTRODUCTION TO M EDIATION 1.1 Introduction 1.1.1 Alternative Dispute Resolution Alternative dispute resolution (‘ADR’) is a process (other than judicial determination) in which an impartial person assists parties to resolve their dispute. The National Alternative Dispute Resolution Advisory Council (‘NADRAC’) describes three kinds of ADR: ‘alternative,’ ‘assisted’ and ‘appropriate’ dispute resolution. ADR processes can thus be: Facilitative A guided process such as facilitation, mediation, or conferencing Advisory An expert appraisal, mini-trial, or early neutral evaluation Determinative A binding arbitration or expert determination 1.1.2 Mediation Mediation is a form of ADR. Essentially, it is principled negotiation conducted by a third party mediator. Using their assistance, parties negotiate to: Identify the disputed issues; Develop creative solutions; Consider alternatives; and Endeavour to reach an agreement Unlike an advisory or determinative process, the mediator has no advisory or determinative role. The outcome is therefore non-binding except to the extent formally agreed by the parties. According to Folberg and Taylor, mediation is: A process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. 1 See further Astor and Chinkin, Dispute Resolution in Australia (1992) 60. 1 Folberg and Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation (1984) 7–8.
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Dispute Resolution and Legal Ethics 04 – Mediation Page 2 of 12 1.2 When is Mediation Appropriate? As a general facilitative ADR procedure, the basic presumption is that mediation is probably appropriate. The issue here is whether mediation is likely to be fair and/or successful. Research into the appropriateness of mediation and other forms of ADR has proved inconclusive. A study by Mack has indicated that most research into the established indicia of appropriateness is contradictory or inconclusive. 2 The following factors have been neither shown to necessarily prevent effective ADR nor indicate likelihood of success; however, they may be relevant in some cases: 1 The Parties Capacity of parties to participate safely and effectively on their own behalf o NAB v Freeman : agreement challenged on the basis that Freeman lacked the capacity to participate in mediation o ACCC v Lux : intellectual disability seen as mitigating in favour of mediation (avoiding court for vulnerable parties) o Unmanaged mental illness of intellectual disability may be reason for an advocate to represent the party Willingness to negotiate in good faith o If unwilling or adamant about their version of events, unlikely that they will be able to negotiate cooperatively
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04_Mediation - Dispute Resolution and Legal Ethics 04...

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