The SHAW DISPUTE RESOLUTION Mediation Process

Consultation:

Before the joint mediation process begins, the mediator consults with everyone separately in an individual private session, to understand your perspective on the conflict. This allows the mediator to assess the suitability of your case for mediation, learn the various points of view on the conflict, as well as any possible factors that may hinder the process. At this stage, relevant documents and information can also be identified, obtained and exchanged. The joint mediation session then follows.

Joint Mediation Session:

Everyone who has settlement authority will attend the joint mediation session. An independent, neutral, legally-trained mediator lays out the guidelines of the discussion, as well as the roles of the parties involved. Concerns raised by both sides are explained and summarised, and the participants agree that these will form the agenda of topics for the joint mediation session. We advise and encourage everyone to consult their lawyer prior to and during the discussion, however it is not a requirement for lawyers to attend a joint session of the resolution process. While the mediator controls the process, you agree on who speaks first and both sides control the flow of discussion. As topics are covered, options for resolution are generated and evaluated until everyone arrives at a mutually satisfying outcome – legally and personally. Once agreed on a resolution, the mediator has it documented and signed by all parties, and you may wish to have the outcome sent to your lawyers and any other stakeholders involved in the dispute to be legally formalised.

Individual Private Session:

At times, the joint session can become intense, and you can take a break if you feel stressed. Our mediator will then speak with you privately to check in with you about your experience in the joint mediation session, as well as explore possible outcomes and reality-test them in private. This discussion is not revealed to the other side unless permitted by you. When you are ready, the joint mediation session resumes for further negotiations and exchanges of offers and settlement.

Memorandum of Understanding (MOU):

A Memorandum of Understanding or MOU is a documented record of the outcome once agreement is reached during a joint mediation session. It signifies an intention to negotiate a contract in the future, and can be legally formalised by your lawyer. An MOU is not intended to be a legally binding document, and it’s primary purpose is to ‘kick-start’ an agreement or formal legal document, if you wish to have one. It allows you to consider how the outcome developed in the mediation will work and gives you an opportunity to get legal advice before signing a legally binding agreement. An MOU is also ‘without prejudice’, i.e. it cannot be used as evidence of what you may or may not have agreed to during the mediation.

Click here to learn more about Mediation.

The SHAW Arbitration Process

Admin Intake:
An arbitration case begins when one party submits a Request for Arbitration to SHAW DR.  The other party (the respondent) is notified by the Dispute Resolution Co-ordinator at SHAW DR and a deadline is set for response.  SHAW DR works with the parties to identify and select an arbitrator based on the criteria determined by the parties.

Preliminary Meeting:

The arbitrator conducts a preliminary hearing with the parties and their lawyers, to discuss the issues in the case and procedural matters, such as witnesses, evidence, sharing information and other matters including the timing and total cost of the arbitration.

An Agreement to Arbitrate is signed to confirm everyone’s commitment to the process.

Documents:

The lawyers and their clients then prepare for hearing and exchange information and documentation as discussed and agreed or ordered at the preliminary hearing.

Evidence & Oral Submissions:
At the hearing before the Arbitrator, both parties may present evidence to the arbitrator as agreed. Unless the case is complex and there are more than the two (2) parties as witnesses, this is the only hearing before the arbitrator.  Following the evidence the lawyers make final submissions and answer questions from the Arbitrator.

Award:

Finally, the arbitrator closes the record on the case and writes a decision and publishes the Award within 28 days.

Click here to learn more about Arbitration.

The SHAW FDR Process

Intake Session:
Before FDR can commence, an assessment will be made to see whether FDR is suitable for your situation.  A decision about whether FDR is appropriate is a matter for the professional judgement of the SHAW practitioner after considering whether it is in all of the parties’ best interests to proceed with FDR.

 Consultation:

Before the joint mediation process begins, the mediator consults with everyone separately in an individual private session, to understand your perspective on the conflict. This allows the mediator to assess the suitability of your case for mediation, learn the various points of view on the conflict, as well as any possible factors that may hinder the process. At this stage, relevant documents and information can also be identified, obtained and exchanged. The joint mediation session then follows.

Joint Mediation Session:

Everyone who has settlement authority will attend the joint mediation session. An independent, neutral, legally-trained mediator lays out the guidelines of the discussion, as well as the roles of the parties involved. Concerns raised by both sides are explained and summarised, and the participants agree that these will form the agenda of topics for the joint mediation session. We advise and encourage everyone to consult their lawyer prior to and during the discussion, however it is not a requirement for lawyers to attend a joint session of the resolution process. While the mediator controls the process, you agree on who speaks first and both sides control the flow of discussion. As topics are covered, options for resolution are generated and evaluated until everyone arrives at a mutually satisfying outcome – legally and personally. Once agreed on a resolution, the mediator has it documented and signed by all parties, and you may wish to have the outcome sent to your lawyers and any other stakeholders involved in the dispute to be legally formalised.

Individual Private Session:

At times, the joint session can become intense, and you can take a break if you feel stressed. Our mediator will then speak with you privately to check in with you about your experience in the joint mediation session, as well as explore possible outcomes and reality-test them in private. This discussion is not revealed to the other side unless permitted by you. When you are ready, the joint mediation session resumes for further negotiations and exchanges of offers and settlement.

Memorandum of Understanding (MOU):

A Memorandum of Understanding or MOU is a documented record of the outcome once agreement is reached during a joint mediation session. It signifies an intention to negotiate a contract in the future, and can be legally formalised by your lawyer. An MOU is not intended to be a legally binding document, and it’s primary purpose is to ‘kick-start’ an agreement or formal legal document, if you wish to have one. It allows you to consider how the outcome developed in the mediation will work and gives you an opportunity to get legal advice before signing a legally binding agreement. An MOU is also ‘without prejudice’, i.e. it cannot be used as evidence of what you may or may not have agreed to during the mediation.

FDR Option – Section 60i Certificate:

A Section 60i Certificate is particularly relevant to family disputes that involve custody or parenting issues. The Section 60i Certificate, or Certificate of Attendance, is required before parents submit an application to the court for a parenting order, under the Section 60i of the Family Law Act 1975. This document aims to show that both sides attempted to resolve their issue through family dispute resolution or mediation. The S.60i certificate will be issued based on the following circumstances:

  • One person did not attend the mediation/FDR because the other party refused or failed to attend.
  • The mediator or the family dispute resolution practitioner did not see the issue fit for mediation, so both sides did not attend.
  • All the participants were present during mediation or family dispute resolution, and genuinely tried to resolve the dispute.
  • All the participants were present during mediation or family dispute resolution, but they did not make an effort to resolve the issue.
  • All the participants were present in mediation or family dispute resolution, but the mediator did not see it appropriate to continue the mediation process for the dispute.

Click here to learn more about FDR.

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Thank you to Ali and your team for your prompt actions in organising the mediation. I have received amazing feedback from those involved about Ali’s calming but methodical approach to ensuring that everyone had the opportunity to be heard, raise their concerns and come up with solutions.  I am confident that with Ali’s help we have put in place a plan for future success. Thanks again for helping us work through the issues and get this great outcome for all.

Tori, People Vision (for Skycity)

November 2018