What is alternative dispute resolution (ADR)?
ADR is the general term that is applied to ways of resolving disputes that stop short of litigation. There are a number of forms of ADR, but the best known are mediation, conciliation and arbitration.
What is Mediation?
In a nutshell, in mediation the mediator guides the parties through a structured process that helps them to arrive at their own solution. Its strength lies in giving control to the parties.
The mediator does not impose or force decisions on the parties. When the parties find a resolution, because it is their own, it is more likely to last.
What is Conciliation?
Conciliation is very similar to mediation but the conciliator may put forward proposals to resolve the dispute. These conciliatory formulas might or might not be accepted by the parties.
What is Arbitration?
Arbitration is a process where a third neutral party, the arbitrator or arbitral tribunal, make a legally binding decision on how to resolve a dispute. The parties or their legal representatives make their case and the arbitrator or tribunal makes a final decision, the Arbitral Award, which is legally binding.
As in a Court of Law, the decision may not please either party.
What is Co-mediation?
Co-mediation is a mediation with two mediators. In principle, we recommend a male and a female mediator, but the choice of mediators is made according to the parties in dispute. For example if the dispute is between a mother and daughter, the parties may prefer two female mediators. If the dispute is between a male contractor and a female client, or vice versa, we would normally recommend using male and female mediators. In a family dispute between husband and wife, we would recommend male and female mediators.
The co-mediation model has been in use for many years in Australia, the USA and other countries, mainly through Community Justice Centres.
In commercial disputes, the male/female team offers the possibility to generate options from two different perspectives. This is not available in all-male or all-female teams.
When requested, Delcy will work with one of our consultants, Mr Tom Stodulka, who is also a highly experienced co-mediator. As they combine experience in the civil law and common law systems, Delcy and Tom make a particularly strong co-mediation team.
Why would I choose mediation or conciliation over arbitration or litigation?
Mediation and conciliation are quicker and cheaper than arbitration or going to court.
Most importantly, mediation gives the parties themselves an opportunity to come up with solutions that both can live with and are therefore more likely to “stick”.
Mediation and conciliation of commercial disputes may allow the parties to conserve or repair commercially important relationships.
Are all cases suited for mediation?
No, not all cases are suited for this process.
Sometimes the conflict has been going on for too long and the parties’ positions are too entrenched to reach an agreement. In such cases, the parties might agree to ask somebody else to resolve the matter and make a final, binding decision.
In such cases, arbitration or litigation may be more appropriate.
What actually happens in Mediation?
In a face-to-face mediation (when all the parties are present) the mediator will explain the process, the “ground rules” and the roles of the mediator, the parties and, if present, their support people or lawyers.
In general, the mediator will ask you, in turn, to make a brief statement of what you want to achieve in mediation and the issues that brought you to mediation.
The mediator will then write a list of the issues that both parties have mentioned and will start discussions.
The mediator will guide you through the discussions and might decide to have private sessions with each of you. These private sessions are confidential. The mediator cannot disclose the content of this session (unless a serious threat to people or property has been made).
The mediator will encourage you to talk directly to each other. Initially this might be difficult, but the mediator will help you to achieve this with his or her skills and experience.
You always have the right to ask for a break or to consult with your solicitor or support person. (If you don’t have one present you can always call them.)
Once you are more comfortable talking to each other, you are more likely to come up with some ideas on how to settle your differences.
What is the Initial Consultation?
It is your first informal conversation with the mediator. It is very important to have this confidential and private meeting so that you can ask all the questions you may have.
Most importantly, in this initial consultation, you meet the practitioner, ask about his or her experience and decide whether he or she is the right professional for you.
What if I don’t get an agreement?
Most cases do settle in mediation or conciliation but sometimes, even when they do not, the issues have been narrowed and misunderstandings clarified. In such cases, it is not uncommon for the parties to reach agreement on their own.
Sometimes the parties return for a second session, some weeks later, and reach an agreement then.
Do I need legal advice before I come to mediation or conciliation?
In most matters, we encourage clients to obtain legal advice before coming to mediation or conciliation. Parties are also welcome to bring their solicitors to the mediation or conciliation session. These issues will be discussed in the Initial Consultation.
Delcy encourages the presence of lawyers and other professionals in mediation. She believes that there is a space for mediators, accountants, financial planners and lawyers to come together to guide the people who need to resolve their conflict.
Delcy strongly rejects the notion that lawyers should be excluded from mediation. She believes that lawyers can make a major contribution to the process of mediation and conciliation. Lawyers who come to our mediation practice know that their role is not to make decisions for their clients – it is to support, guide and give legal advice to their clients.
In mediation, the mediator manages the process and the parties have control of the content and outcome of their agreement with the support of their lawyers.
Would you be able to make referrals?
Yes. We make referrals to counsellors, psychologists, lawyers, financial planners, accountants and other service providers who might be able to help our clients.
Do any of your practitioners speak languages other than English?
As well as English, our Principal, Delcy Lagones de Anglim speaks Spanish (her mother tongue), French and Italian at a competent level and Khmer at a basic level. Her international experience, which includes living, studying and working in Italy, Switzerland, France, Peru, Cambodia and Australia, has provided her with a strong background for dealing with multicultural issues. She understands people from different cultural backgrounds.
Delcy has worked as a lawyer overseas and understands both the civil and common law systems.
Can we have a mediation via phone link?
Yes, it is possible. We have worked in the past with parties not only outside Canberra but overseas.
If necessary, one of our mediators will travel to wherever the parties want to meet. Alternatively we can conduct the mediation by phone link.
We encourage a face-to-face mediation but, in cases where one of the parties does not feel comfortable sitting in the same room with the other party, we can offer phone or shuttle mediation.