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Mediation
For anyone who has ever been embroiled in any form of dispute, whether commercial or otherwise, it can seem that the cost of justice is prohibitively high. Lawyers cost money, filing documents in court is expensive and time consuming, and our courts are overloaded so the wait to appear in court is often long, and the outcome often seems uncertain. In some circumstances, mediation can be a useful alternative way of resolving disputes, small or large, in a cost effective and timely manner.
The justice system has recognised the effectiveness of mediation. The High Court, District Court and Family Court are all utilising mediation as one way to promote early resolution of matters rather than proceeding through the court process. Mediation is used to resolve such issues as tenancy disputes, employment disputes, civil disputes, claims to the Health and Disability Commissioner, claims under the Human Rights Act, community issues, environmental issues, and property disputes to name just a few.
For those of you who wish to resolve matters through mediation, below is a brief outline of what you can expect.
- Depending on the type of dispute, mediation may be ordered by the court following the initial filing of an application. Alternatively, parties may agree that they will endeavour to resolve their differences through mediation and the parties themselves will choose a mediator.
- There are many capable mediators in New Zealand (LEADR NZ and AMINZ, amongst others, may be contacted for a list of accredited mediators in your area), and Gibson Sheat can help you identify a mediator.
- You may retain your lawyer to assist with the mediation process if you choose, or you may attend mediation by yourself. Whether you wish to retain your lawyer will often depend on the legal complexity of the issue, but we suggest you take legal advice first.
- Mediation will generally cost somewhere between $3,000 to $5,000 plus GST per day, but can be higher. You should check this fee out with your mediator. The fee will usually be split between the parties and therefore can be less expensive than litigation.
- The mediator will often meet separately with each party prior to mediation to gain an overview of the issues, discuss the mediation process with you and have an 'agreement to mediate' document signed.
- Everything that occurs and is said at mediation is confidential to the parties except in circumstances where the parties agree otherwise.
- On the day of the mediation the parties will meet together with the mediator. The mediator may make a brief opening statement and then each party may have an opportunity to make an opening statement setting out how they see the problem. The mediator will then identify the issues and the parties will agree on an agenda.
- The parties will then be invited to address each agenda item and the mediator will assist the parties in this process. This is an opportunity to air grievances and express feelings, as well as discuss the facts and the merits of each party's case.
- At any time during the process the mediator may wish to meet with a party individually to discuss issues in more depth and generate options for resolution. Anything that is said at that time is confidential and will not be repeated or referred to by the mediator when the parties meet together again.
- There may be several independent sessions or none at all depending on the needs of the parties.
- The mediator's role is to assist the parties to explore the issues and develop options for resolution, not to make a decision for the parties. If the parties reach agreement this will be recorded in writing.
Mediation generally has a high settlement rate with anecdotal reports of 75-80% of cases settling at mediation. For those who wish to know more about mediation please contact us at Gibson Sheat.
