Philosophy & Practice of Mediation, Sir Laurence Street, 1999

The mediator

During mediation an independent third party chosen by the disputing parties facilitates the negotiation by the parties of their own solution to the dispute.

The role of the mediator

The mediator assists the parties:

• systematically to isolate the issues in dispute;
• to develop and explore options for the resolution of issues in dispute enabling parties to play an active role in the decision-making process and to exercise control over the terms of the settlement;
• to reach a consensual agreement which accommodates their needs and interests.

The mediator will not:

• give legal or other professional advice to any party; or
• impose a result on any party (but may assist in the generation of options for settlement); or
• make a decision for any party.

What happens before mediation?

Before mediation all parties to the dispute will have:

• agreed to use mediation as an appropriate method of endeavouring to resolve the dispute;
• selected a suitable mediator – a list of mediators is available from the Registrar, although you are not bound to use a mediator from that list.

Time limit to attend mediation

Parties must arrange mediation within eight (8) weeks after the Applicant has been notified by the Respondent or NSW Department of Primary Industries that both parties agree to mediation. If mediation has not been attended within this time, it is the Applicant’s responsibility to notify the Registrar of the progress of the matter.

If the Registrar has not been notified on the progress of the matter within eight (8) weeks, the matter may be referred to arbitration.

Conflicts of interest

The mediator must, prior to the commencement of the mediation, disclose to the parties, to the best of the mediator’s knowledge, any prior dealings with any of the parties as well as any interest in the matter.

If in the course of the mediation the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator’s capacity to act impartially, the mediator must immediately inform the parties of these circumstances. The parties will then decide whether the mediation will continue with that mediator or with a new mediator appointed by the parties.

Cooperation by the parties

The parties to mediation must be courteous to each other and cooperate with the mediator.

Features of mediation

Mediation is conducted without prejudice to any legal rights which the parties may have. Mediation is a voluntary and confidential process. It will not be binding on any party unless and until agreement is reached. If mediation is unsuccessful, the matter will be referred to arbitration.

How does mediation work?

For the mediation itself, a neutral venue including a main room large enough to accommodate all participants and separate rooms for each group will need to be arranged. Once the participants have been introduced, the mediator will open the mediation by making a short statement explaining the mediation process, its essential features and objectives and the mediator’s role in the process.

After the opening, the mediator will ask each party in turn to explain what it is that has brought them to mediation. From the parties’ statements, the mediator will identify the issues which are in dispute and the common ground between the parties. Then, after checking with the parties, the mediator will usually write those issues and common ground on a whiteboard and will set an agenda for the discussion of those issues.

Private sessions

During the mediation the mediator may meet with each of the parties separately. The aim of such private sessions is to enable the mediator to explore any underlying issues and to ensure that the parties are content with the process. It is during the private session that proposed settlement options are often fully explored and tested. The mediator will not, unless specifically authorised to do so, disclose anything said in a private session to the other party.

Representation at the mediation session

At the mediation each party may have one or more other persons, including legally qualified persons, to assist and advise them subject to agreement by the mediator.

Confidentiality of the mediation

The parties and the mediator will not disclose any document or information given during or for the purpose of mediation (including any preliminary conference) to any person not involved in the mediation unless required by law to make such disclosures.

Termination of the mediation

A Party may terminate the mediation at any time.

Settlement of the matter

If settlement is or is not reached at the mediation, the Applicant must notify the Registrar in writing within 14 days of the outcome. If settlement was not reached at mediation the matter may then be referred to arbitration.

Exclusion of liability

If a mediator was selected from the list provided by NSW Department of Primary Industries, that mediator is not liable for any action, liability claim or demand in respect of a matter or thing where the mediator acted in good faith for the purposes of a mediation session under the Agricultural Tenancies Act 1990.

The cost of mediation

The cost of the mediation, including the cost payable to or in respect of the mediator, are to be paid by the parties as agreed with the mediator.

Contact details

Director-General
NSW Department of Primary Industries
Attention: Registrar, Agricultural Tenancies Act 1990
Locked Bag 21
ORANGE  NSW  2800
Telephone: 02 6391 3552
Facsimile:  02 6391 3563