Mediation in Australia

Last updated

Mediation in Australia, as a form of mediation, involves understanding the role that culture plays in the multi-cultural society of Australia. [1] Cultural differences often exist due to race and ethnicity, but can also arise from religion, gender, age, sexual orientation and disabilities. [2] Major concerns in cross-cultural dispute resolution include perceived power imbalance—often escalated by communication difficulties, misconceptions, negotiation behaviour, face-saving and the publicity surrounding the dispute. [3]

Contents

Native title mediation

Native title in Australia has frequently given rise to mediation. If a mediator lacks cultural literacy across different cultures or awareness of parties having difficulties during the mediation due to differences in culture, then the mediator's lack of understanding or misunderstanding could cause a breakdown in the negotiation-process. Cultural awareness ensures that mediators can adapt their skills and techniques to ensure that they can maintain their standard of care throughout the mediation process. [4]

Native-title mediation differs from regular mediation in that, rather than the parties referring a dispute to mediation, the Federal Court of Australia can also determine whether the National Native Title Tribunal should mediate a matter. Other distinctive features occur: often native-title mediations can involve up to one hundred participants; lawyers play a minimal role; and rather than making technical legal points the speakers for the Aboriginal and Torres Strait Islands people often talk about their family genealogies, traditions, dreaming and stories to support their claims. [5]

The National Native Title Tribunal does not decide whether native title exists over land in question: rather it has the role of mediating contested applications and applications for compensation which originated in the Federal Court of Australia. More importantly, the parties must mandatorily attend a native-title mediation unless the court has granted leave. [6] However, the parties can apply for the termination of the mediation at any time later than three months after the commencement of the mediation. [7]

Due to the large number of applicants in native-title applications, the process of mediation differs somewhat from that of other mediations. The National Native Title Tribunal takes a more "outcome-focused" approach. [8] In the course of a number of pre-mediation meetings the mediator obtains information from the parties in relation to the claim itself and tries to obtain information from the parties regarding their interests in the claim and any other matters which may have relevance to the mediation. [9]

Mediation clauses and the mediation process

Mediation clauses aim to ensure that if a conflict arises the parties will settle it amicably and fairly by triggering the requirement for the parties to use the mediation process (as opposed to the court system). [10] As more Australian companies realise the benefits of settling commercial disputes out-of-court, many companies now include compulsory mediation clauses in their contracts. Such benefits include avoiding negative publicity that can often entail following a trial, reduced legal fees and less time spent by management with lawyers. [11]

Contracts which could include mediation clauses include franchise agreements, commercial contracts, building and construction agreements, finance and lease agreements and joint ventures. Standard mediation clauses appear on the websites of professional associations and of mediation agencies; however mediators may draft some clauses to suit specific circumstances, for example if the parties reside in different countries. [12]

Standard mediation clauses generally provide—in the event of a dispute—for the referral of the matter to a mediator, and make it subject to the rules of mediation. Further, standard clauses will often specify an alternative if the parties fail to reach agreement within a specified time. Most importantly, such clauses allow for the continuation of the contract notwithstanding the current dispute. [13]

Note that the Australian courts, in recent times, have declared a number of mediation clauses void due to poor drafting. The reasons the courts have cited for declaring the mediation clauses void include, for example:

Mediators may therefore obtain legal advice when drafting such clauses to ensure their enforceability. [14]

In Australia, once parties have decided to participate in a mediation, the majority of mediators will require them to sign a document commonly known as an "agreement to mediate". Agreements to mediate represent an important step in the mediation process because parties participating in mediation often have different views and expectations in relation to the mediation process, the mediator's role and the parties' role. [15]

"Agreements to mediate" include clauses in relation to: [16]

Importantly, agreements to mediate provide both the mediator and the parties to the mediation with a contract which, if breached, will give rise to remedies for breach of contract. [17]

Many Australian government agencies, professional and industry-bodies and mediation-agencies provide pro-forma agreements to mediate on their web-sites. The mediator should ensure that the parties understand the terms of the agreement before executing it. Mediators should also give the parties an opportunity to ask questions and suggest changes. [18] Once the parties express themselves content with the agreement to mediate, the mediator should arrange for its signing and dating prior to the commencement of the mediation. [19]

Related Research Articles

Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is sometimes used interchangeably with conflict resolution.

<span class="mw-page-title-main">Mediation</span> A Dispute resolution with assistance of a moderator

Mediation is a structured, interactive process where an impartial third party neutrally assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that they manage the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties.

Online dispute resolution (ODR) is a form of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.

Native title is the designation given to the common law doctrine of Aboriginal title in Australia, which is the recognition by Australian law that Indigenous Australians have rights and interests to their land that derive from their traditional laws and customs. The concept recognises that in certain cases there was and is a continued beneficial legal interest in land held by Indigenous peoples which survived the acquisition of radical title to the land by the Crown at the time of sovereignty. Native title can co-exist with non-Aboriginal proprietary rights and in some cases different Aboriginal groups can exercise their native title over the same land.

In contract law, a choice of law clause or proper law clause is a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction. An example is "This Agreement shall be governed by, and construed in accordance with, the law of the State of New York."

<span class="mw-page-title-main">Forum selection clause</span> Contract clause which requires disputes to be resolved in a given manner or court

In contract law, a forum selection clause in a contract with a conflict of laws element allows the parties to agree that any disputes relating to that contract will be resolved in a specific forum. They usually operate in conjunction with a choice of law clause which determines the proper law of the relevant contract.

<span class="mw-page-title-main">Native Title Act 1993</span> Act of the Parliament of Australia

The Native Title Act 1993(Cth) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land management system". The Act was passed by the Keating government following the High Court's decision in Mabo v Queensland (No 2) (1992). The Act commenced operation on 1 January 1994.

Australian insurance law is based on commercial contract law, but is subject to regulations that affect the insurance industry and insurance contracts within Australia. Commonwealth Parliament has power to make laws with respect to insurance and insurance companies under section 51(xiv) and (xx) of the Australian Constitution. Generally, the Insurance Act 1973 and Insurance Contracts Act 1984 are the main acts that apply, however there are a number of other pieces of legislation enacted by the states, private codes and voluminous case law all of which forms the body of insurance law.

<span class="mw-page-title-main">Arbitration</span> Method of dispute resolution

Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons, which renders the 'arbitration award'. An arbitration decision or award is legally binding on both sides and enforceable in the courts, unless all parties stipulate that the arbitration process and decision are non-binding.

Party participation in the mediation process is the crux of the mediation process. When parties agree to a mediation process, they then have the power vested in them to arrive at a mutually acceptable solution to the dispute. The mediator has power over the process, but not the outcome. The mediator should be impartial and have no influence or control over the outcome. The mediation is an endeavour by the parties to reach an agreement, usually to avoid, or in preference to a court based processes.

<i>Construction Law Journal</i>

Construction Law is a monthly English-language journal providing news and articles on the construction industry. The journal is written for the non-legal professional involved in contractual and other legal matters in the industry. The journal is owned by LexisNexis which is part of Reed Elsevier.

The terms legal case management (LCM), legal management system (LMS), matter management or legal project management refer to a subset of law practice management and cover a range of approaches and technologies used by law firms and courts to leverage knowledge and methodologies for managing the life cycle of a case or matter more effectively. Generally, the terms refer to the sophisticated information management and workflow practices that are tailored to meet the legal field's specific needs and requirements.

Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system.

<span class="mw-page-title-main">Contract</span> Legally binding document establishing rights and duties between parties

A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more mutually agreeing parties. A contract typically involves the transfer of goods, services, money, or a promise to transfer any of those at a future date. In the event of a breach of contract, the injured party may seek judicial remedies such as damages or rescission. A binding agreement between actors in international law is known as a treaty.

Benlou Properties (Pty) Ltd v Vector Graphics (Pty) Ltd is an important case in the South African law of lease.

<i>General Finance Acceptance Ltd v Melrose</i>

General Finance Acceptance Ltd v Melrose [1988] 1 NZLR 465 is an often cited case regarding whether a contract term for calculating damages in the future are what is called liquidated damages, or is otherwise deemed a penalty clause, which the courts do not uphold as legally enforceable.

<i>Attorney-General v Barker Bros Ltd</i>

Attorney-General v Barker Bros Ltd [1976] 2 NZLR 495 is a cited New Zealand case regarding the legal concept of certainty regarding contract formation. It reinforces in NZ case law the English case of G Scammell & Nephew Ltd v Ouston [1941] AC 251.

<i>Money v Ven-Lu-Ree Ltd</i>

Money v Ven-Lu-Ree Ltd [1988] 2 NZLR 414, aff'd [1989] 3 NZLR 129 is a cited case in New Zealand regarding the issue of certainty in contract formation.

<i>QRG on Arbitration, Conciliation and Mediation</i> Non-fiction law book

Quick Reference Guide on Arbitration, Conciliation & Mediation is a book authored by Vishnu S Warrier published by Lexis Nexis in 2015.

<span class="mw-page-title-main">Allan J. Stitt</span>

Allan Jeffrey Stitt is a chartered Canadian arbitrator, mediator and film producer. He is the president and CEO of ADR Chambers, a Canadian arbitration and mediation organization. Stitt is the recipient of the 2006 Ontario Bar Association Award of Excellence in Alternative Dispute Resolution. In 2022, Stitt was awarded an honorary Doctor of Laws from the University of Windsor Faculty of Law. As a movie executive producer, Stitt has also contributed to films including The Layover, The Birth of a Nation, Into the Forest, I Saw the Light, and Ithaca.

References

  1. ↑ Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia. p. 82.
  2. ↑ Astor, Hilary; Chinkin Christine M. (2002). Dispute Resolution in Australia . Butterworths, Sydney. p. 169.
  3. ↑ Young, S (1999). "Cross-cultural Negotiation in Australia: Power, Perspectives and Comparative Lessons". Australian Dispute Resolution Journal: 41.
  4. ↑ Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia. p. 81.
  5. ↑ Baldwin, Heather; Robson, David. "Native Title Mediation - A Court's Perspective" (PDF). Federal Court of Australia, QLD. p. 6. Archived from the original (PDF) on 28 September 2007.
  6. ↑ Sourdin, Tania (2001). Alternative Dispute Resolution. Pyrmont, NSW: Lawbook Co. p. 92. ISBN   0-455-21820-X.
  7. ↑ "Native Title Act". 1993: ss 86B(1) and (2), 86C(2).{{cite journal}}: Cite journal requires |journal= (help)
  8. ↑ "National Native Title Tribunal, Annual Report". 1 July 1996: 50.{{cite journal}}: Cite journal requires |journal= (help)
  9. ↑ Sourdin, Tania (2001). Alternative Dispute Resolution. Pyrmont, NSW: Lawbook Co. p. 93. ISBN   0-455-21820-X.
  10. ↑ Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia. p. 418.
  11. ↑ Priest, M; Scott S (22 July 2005). "Case Closed: Disputes Head Out of Court". The Australian Financial Review .
  12. ↑ Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia. p. 419.
  13. ↑ Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia. p. 420.
  14. ↑ Spencer, David; Altobelli, Tom (2005). Dispute Resolution in Australia: Cases, Commentary and Materials, Thomson. Lawbook Co, Sydney. pp. 293–317.
  15. ↑ Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia. p. 448.
  16. ↑ Charlton, Ruth; Dewdney, Micheline (2003). The Mediator's Handbook: Skills and Strategies for Practitioners. The Law Book Company Limited, Sydney. p. 338.
  17. ↑ Angyal, Robert (1998). "Legal Issues in the Mediation Process". ADR Bulletin. 1 (6): 4.
  18. ↑ Charlton, Ruth; Dewdney, Micheline (2003). The Mediator's Handbook: Skills and Strategies for Practitioners. The Law Book Company Limited, Sydney. p. 178.
  19. ↑ Charlton, Ruth (2000). Dispute Resolution Guidebook, LBC Information Services, Sydney. p. 15.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.