Mediation – Negotiate a resolution of your dispute and maintain good relations

Between 11 and 14 September 2014, our principal, Chris Lenz, attended a postgraduate mediation course at the University of Queensland. Having undergone mediation training in 1990 and again in 2002, and having conducted over 80 mediations since then, Chris was amazed at how much mediation had developed over the last 10 years or so.

In the Queensland Law Society September 2014 publication, “Proctor”, Paul Coves (at page 39) by adapting the Mediator Standards Board – National Mediator Accreditation Practice Standards, March 2012 (“NMAS”), referred to Mediation as:

“…a process by which disputants are assisted by a third party mediator to identify issues in dispute, explore available options, and attempt to reach decisions to resolve the issues in dispute.”

There are at least four recognised models of mediation being practised in Australia according to Prof Lawrence Boulle. (Boulle L, Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Sydney, 2011), paragraph 2.40 starting at page 43. These are:

  1. Settlement mediation;
  2. Facilitative mediation;
  3. Transformative mediation;
  4. Evaluative mediation

Facilitative mediation is the model that Chris had earlier learned and practised, and it is the model that is required for National Mediator Accreditation according to Coves in Proctor and (page 39) and his reference to NMAS being primarily facilitative.

Essentially facilitative mediation is a model in which the mediator does not provide advice of an evaluation of the factual or legal merits of either parties’ positions (“advice”), and the focus is on guiding the parties to reach settlement between themselves without any such advice.

However Coves (page 39) says that, “In practice, however, it is common to encounter mediators who mediate using a more interventionist or evaluative style.”

Chris’s experience in construction disputes over the years, suggests that the parties may well require a more evaluative style in mediation in order to resolve disputes, and he will carry out research to see whether this may be correct.

Evaluative mediation is defined by Professor John Wade of Bond University (http://epublications.bond.edu.au/law_pubs/427) as follows:

“A working description of evaluative mediation is a dispute resolution process whereby a person with some expertise in a particular field meets with two or more disputants, encourages them to negotiate within and across their respective teams; and collects alleged facts, evidence and arguments, and gives information, opinion and advice which varies in tone, timing and content.”

Therefore evaluative mediation is where the mediator provides the advice referred to above.

If you need any advice in relation to mediation, please call us on (07) 3220 0299.

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