Mediation
- Mediation is independent of the tribunal;
- Mediation is free;
- Mediation is confidential (unless the parties agree otherwise);
- Mediation is quick;
- Mediation is not adversarial;
- Mediation is effective, ie has a high success rate;
- Mediation is an opportunity for the parties to write their own outcome;
- Mediation is informal.
A mediator is appointed after receipt of the affidavit of service from the applicant and allowing 14 days for filing of the defence and counterclaim (in most cases except for expedited matter). (See section 117 of the CCT Act).
Mediators are accredited and experienced and are generally qualified in one of the following fields:
- law
- engineering
- architecture
- quantity surveying
- building
- accountancy
- surveying
or similar qualifications or previous experience in those fields. The tribunal requires the mediators to be independent of the parties and to act impartially.
How is the mediation arranged?
The mediator will contact the parties and arrange a suitable time and place for the mediation to take place. The mediation should occur within fourteen (14) days of the appointment of the mediator. The mediators are entitled to conduct the mediation in a way that they feel is appropriate.
Will there be legal representation at the mediation?
In accordance with section 74 of the CCT Act - a party must attend the mediation in person, unless the mediator considers it appropriate in the interests of justice to allow a party to be represented by a lawyer or other person.
The mediation is not open to the public.
The mediator will assist the parties to reach an agreement that settles all or some of the issues in dispute and helps the parties to:
- identify the issues in dispute;
- discuss possible solutions;
- write an agreement that suits all parties.
The mediator DOES NOT DECIDE the content of the agreement and assists the parties to:
- present their views;
- understand the views of the other party/s;
- clarify issues in dispute;
- explore and consider solutions;
- reach a mutually acceptable agreement.
At the conclusion of the mediation, the mediator will advise the Tribunal whether or not an agreement has been reached.
Any documents prepared for, or discussions held, at the mediation are confidential and are not permitted to be disclosed or relied upon at any Tribunal or related proceedings unless the all parties agree otherwise (section 119 of CCT Act).
In accordance with section 120 of the CCT Act a mediator must not, without reasonable excuse, disclose any information received at the mediation.
What happens if we reach an agreement at mediation?
If an agreement is reached between the parties at mediation, the terms of settlement are required to be signed by all parties, witnessed by the mediator and provided to the tribunal.
The signed mediation agreement which is a legally binding document is then provided to the tribunal by the mediator.
If a BSA inspection and report forms part of the agreement or there is money to be paid into or out of the trust account, the tribunal will issue an order to that effect.
The proforma agreement provides for the parties to agree to all, or part, of the agreement to be made an order.
The tribunal file is then closed.
What happens if the other party does not comply with the mediation agreement?
If there is a breach of the agreement by one or all parties, the tribunal encourages the parties to try to resolve the issues themselves without the need for an appearance before the tribunal.
Parties are encouraged to try to resolve any issues about the mediation agreement between themselves.
The most common problems encountered in complying with an agreement are:
- access;
- timeframes;
- dissatisfaction with work performed;
- failure to pay.
If either party fails to comply with the agreement or for some other reason the agreement cannot be fulfilled, the other party, after giving notice to the party in default, can refer the matter to the tribunal. The tribunal may set the matter down for a mediation agreement hearing where the tribunal, after considering all of the circumstances, may make the agreement an order of the tribunal or make consequential orders or directions.
If the agreement is made an order of the tribunal by consent or otherwise, it may be registered and enforced in the appropriate court pursuant to section 93 of the CCT Act where it becomes a decision of the court.
Last Updated 18 September 2007.
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