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What is Mediation?
Mediation is a process in which a neutral third party assists parties to resolve their dispute by reaching a mutually acceptable agreement.Primarily, the Mediator will facilitate discussion and communication between parties.
The procedure for the mediation is at the discretion of the Mediator. However it will generally be an informal process and will not require the presence of legal or other representation.
To prepare for mediation each party should:
- make written notes setting out their case for use at the mediation;
- bring a copy of the lease; and
- bring copies of all other documents - letters, notices and accounts that may be relevant to the proceedings.
Costs
The lessor and lessee must each bear their own costs of mediation - any loss of trade, costs of legal or other representation on the day, costs of extra shop staff on the day etc are costs each party incurs individually.Fees and expenses of the Mediator are the joint responsibility of parties to the dispute. The Mediator may request a deposit from each party, or may request the full amount to be paid in advance. If the parties do not pay the amounts requested, there will be no mediation. Mediation fees are subject to change but currently start at $1500 (plus the applicable GST) for a 3 hour session and is payable to the Mediator 7 days before the scheduled mediation. (Mediator's reserve the right to charge their standard fee and participants should make enquiries as to that fee prior to commencement of proceedings). The cost is to be shared between the parties, ie each party pays half each (plus the applicable GST).
Representation
Parties do not require legal or other representation at mediation, however they may choose to have support from an adviser or friend. Any person who is present at a mediation session must be a party to the confidentiality agreement.It is essential that each party be present in person or is represented at mediation by a person with full authority to negotiate and settle the dispute.
There can, of course, be cases where unquestionable full authority cannot be present (eg. an overseas lessor). It should, however, be possible for the representative attending the mediation to give a confident and responsible assurance of expectation that a recommendation will be accepted.
Legal and Other Advisers
Legal and other advisers present at mediation with their clients will take such part in the proceedings as their clients wish. It should be borne in mind at all times that mediation is an informal meeting between the parties themselves in a non-legal context. It is essentially directed to the parties being able to engage in a free, and totally protected, person to person exchange of views about the dispute and ways in which it might be able to be settled.Legal and other advisers are not present as advocates or for the purpose of participating in an adversarial courtroom-style contest with each other, still less with the opposing party.
The role of legal and other advisers is essentially twofold:
- to advise and assist their clients in the course of the mediation
- to discuss with the Mediator, with each other, and with their respective clients such legal, evidentiary or practical matters as the Mediator might suggest or their clients might wish.
Agreement Reached
The terms of settlement, or heads of agreement, recording the agreement reached at the end of the mediation, will be prepared by the Mediator for signature by the parties prior to departure at the end of the mediation.Each party should ensure they are in total agreement with the terms of the agreement because, once signed, it is a legally binding document.
Mediation Rules
The Mediation Rules should be read in conjunction with this document. A copy of this document is available from the publications section of this site.Related information
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Information on copyright for the Office of Consumer and Business Affairs website is provided on behalf of South Australia Central http://www.sacentral.sa.gov.au/site/page.cfm?u=60
Disclaimer
Information on the disclaimer for the Office of Consumer and Business Affairs website is provided on behalf of South Australia Central http://www.sacentral.sa.gov.au/site/page.cfm?u=61
Privacy
The South Australian Office of Consumer and Business Affairs (OCBA) is committed to protecting your privacy and the confidentiality of your personal information, consistent with the South Australian Government's Information Privacy Principles. If you would like to view the full privacy statement please visit: http://www.ocba.sa.gov.au/privacy.html
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