Step 6: Successful Dispute Resolution

The information set out on this sheet will help ensure that you fully understand the dispute resolution process and are aware of what to expect. The typical dispute resolution process set out below is based on mediation, however, other ADR methods would usually follow a similar path.

A typical dispute resolution process

APPOINTMENT OF A MEDIATOR/ VENUE SELECTION	Most mediations are organised through a dispute resolution provider (refer to step 4). An important role for the provider is to ensure that the mediator in any particular dispute is independent from all parties and does not have a conflict of interest in the matter. The dispute resolution provider will usually send both parties a list of potential mediators for their consideration. Any party to a mediation has the right to veto the appointment of a mediator, however, this should be done at the earliest possible time. The dispute resolution provider will also arrange all aspects of the mediation, including co-ordinating a mutually convenient time for the mediation and organising a 'neutral' venue.
MEDIATION AGREEMENT	The dispute resolution provider will provide the parties with a 'mediation agreement' for signature prior to the mediation. This agreement sets out details relating to the conduct of the mediation, such as payment for mediators' services, confidentiality provisions, enforceability issues and termination of the mediation. These matters are discussed in greater detail below.
CONFIDENTIALITY	In most cases, the parties to a mediation will be asked to sign a confidentiality agreement. This ensures that all information provided at the mediation, including settlement offers that may be made, cannot be revealed in other proceedings. The purpose of this confidentiality provision is to ensure that the parties in a mediation are able to discuss the dispute openly and frankly, and seek settlement, without the risk of prejudicing further legal action that may occur if the mediation fails. Confidentiality is also important for the resolution of disputes where adverse publicity may undermine the chances of a settlement.
OPENING STATEMENTS	At the commencement of the mediation both parties will be asked to make a short statement providing your perspective to the dispute, including: how the dispute started how the dispute has affected you and your business what your main concerns are what you see as the main issues your needs that will need to be satisfied in any settlement. Each person is usually required to speak for themselves when making opening statements. The only person who may interrupt is the mediator, who may want to clarify some points. The other party cannot interrupt.
ISSUES IDENTIFICATION	The mediator will summarise each party's key points and identify the key issues in dispute. Both parties can provide additional information at this stage, with the aim being a full compilation of all relevant issues. Once issues have been comprehensively identified and summarised, the mediator will usually encourage discussion about the issues so that any early opportunity for resolution can be identified.
PRIVATE SESSIONS (CAUCUS)	In most disputes, the mediator will meet with each party separately and privately. This provides an opportunity for more frank discussion about the dispute and exploration of opportunities to resolve the dispute. The mediator may discuss with you matters that were raised in the opening statements and establish whether these change the situation or your expectations in any way. You will be able to confidentially discuss any matter with the mediator in this private session. The mediator is bound to maintain the confidentiality of anything said in private session unless you provide authority for him/her to transmit information to the other party. In some cases you may ask that the mediator convey a settlement offer to the other party. The mediator would, however, usually be reluctant to do this until all issues are explored.
TERMINATION OF THE MEDIATION	You have the right to terminate the mediation at any time, for example, if you think the mediator is biased or the other party does not seem to be acting in good faith. If you wish to terminate the mediation for any reason, it is recommended that you first discuss your concerns with the mediator in private. Mediation has a very high success rate (80%+), however, if it becomes apparent that the parties are not going to reach a settlement the mediator will normally recommend that the mediation be terminated. Most importantly, consider carefully your 'bottom line', having regard to:
ACHIEVING RESOLUTION	A joint session of the parties chaired by the mediator is usually held to finalise settlement terms. If necessary, further private sessions may be held to fine-tune difficult issues or break deadlocks. In some instances there may be agreement between the parties on some issues but not on others. In these instances there may be an opportunity for the mediation to be adjourned so that further advice can be obtained. Where there is a technical issue in dispute, the parties may agree to commission an independent expert to provide a recommendation. A mediation settlement may also take the form of an action plan which sets out dates for the making of payments or the completion of various activities (such as the preparation of legal documents, new lease agreements, supply contracts and the like). The terms of settlement of the dispute are not determined by the mediator but by the parties themselves. These terms are written down and signed by each party. If there is a considerable amount at stake, ask for time to seek the advice of a lawyer on the proposed agreement before signing.
ENFORCEABILITY	The signed settlement agreement can be enforced through the courts in the event that a party fails to abide by any of the terms of the agreed settlement.