The ADR Mediation Rules
This is the description of the Mediation procedure conducted under the Australian Dispute Resolvers (ADR) Mediation Rules. We do not recommend proceeding under the mediation procedure in the Code because of limitations in the subdivision process.
What is Mediation?
Mediation is a process of assisted negotiation. The Mediator (often a lawyer or business professional who is accredited as a mediator and may have relevant industry experience) acts as an independent facilitator.
The mediator assists the parties to isolate the issues in dispute, share their respective interests in regard to their preferred outcome and engage in constructive discussion towards creative resolution and agreement.
Unlike an arbitrator, the mediator is not empowered to make a determination of the dispute.
How does the Mediation proceed?
1. Once the mediator is appointed, the mediator first arranges for the parties to sign the Mediation Agreement that will legally govern (and protect) their relationship and the mediation process. The mediation agreement being a binding legal document must correctly identify the (legal) names of the parties.
2. The mediator will decide the:
(a) the time, date and place for the mediation (which must be conducted in Australia); and
(b) how the mediation is to be conducted (by videoconference, telephone or face to face meetings); and
(c) the day the mediation commences.
3. After the mediator sets the date and time for the mediation, then each party:
- must attend the mediation and attempt to resolve the dispute
- must negotiate in good faith,
- must pay half of the mediation fees.
A party is taken to attend mediation if the party is represented at the mediation by a person who has the authority to enter into an agreement to settle the dispute on behalf of that party.
Where is the Mediation held?
The mediation must be conducted in Australia. The mediator will normally set the matter down for mediation to be conducted, usually in the State or Territory in which the dairy farm business is located.
However, video conferencing is the preferred method by which the mediation can be conducted. A videoconference allows for:
- immediate connection between the parties;
- frequent connection between the parties;
- avoids the expense of a single mediation day when all the parties need to travel to a single location to conduct the mediation;
- assists arranging meetings with parties that are interstate or international.
What are the Costs of Mediation?
Each party must pay for their own costs of attending the mediation and are liable equally for the “costs of the mediation” (unless they agree otherwise).
Costs of the mediation include:
- the cost of the mediator
- the cost of room hire
- the cost of any additional assistance (say of expert reports) agreed by both parties to be necessary to conduct the mediation.
The Mediator’s fees are charged at $300 per hour (plus GST) and each party pays half that fee.
Terminating the Mediation
The mediation may be terminated by the mediator or the parties.
(a) The mediator may terminate the mediation at any time if the mediator is satisfied that a resolution of the dispute is not likely to occur.
(b) If the claimant, the party who requested the mediation requests the mediator to terminate the mediation, the mediator must do so.
(c) If after 30 days from the mediation starting, there is no resolution to the dispute, the respondent to the dispute may ask the mediator to terminate the mediation; and the mediator must do so.
Certificate of Mediation
Where the mediator terminates the mediation of a dispute, the mediator must issue a certificate to each party to the dispute, stating:
(a) the names of the parties to the mediation; and
(b) the nature of the dispute that was the subject of the mediation; and
(c) that the mediation has been terminated; and
(d) that the dispute has not been resolved.