Where does mediation sit in Australia’s complex workplace law framework?
“There is no one law in Australia that says ‘thou shalt mediate’,” said Dr. Leigh Hodder, senior workplace relations adviser at iHR.
However, when done properly mediation is a legally binding alternate dispute resolution process that is well established within Australian courts and tribunals, and is supported by legislation.
One example is the Family Law Act, where parties are encouraged to access mediation rather than go to court.
The Fair Work and Human Rights Commission, the Federal Circuit Court/Federal Court, as well as all levels of State Courts and Tribunals, insist on attempts at settlement before the matter is heard.
In the NSW Supreme Court, for instance, the settlement rate is now 46% - and this is only for matters that were actually commenced in the court.
The figure is even more impressive when one extrapolates the number of matters that were settled before they got that far.
“Australian industrial relations legislation recognises the efficiency of mediation and conciliation, rather than proceeding to costly arbitration in the first instance,” says Hodder.
Indeed, in most circumstances a court or tribunal will be required to certify that mediation and conciliation is unlikely to resolve the matter before exercising its arbitrary powers.
An example is section 576(2)(ca) of the Fair Work Act 2009 in relation to the powers of the FWC which reads:
(ca) mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Circuit Court of Australia Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Circuit Court to the FWC for mediation.
Hodder said the mediation process itself is structured and quite simple, usually consisting of three stages.
The first step is to prepare the parties to mediate – to set their expectations about possible outcomes at a realistic level, to start them thinking about the desired behaviours and identify the issues they wish to raise.
The mediator talks with HR about alternative outcomes should the mediation not result in agreement. The mediator meets with each party individually to understand the issues, provide further education about the process and assess the person’s capacity to participate in the mediation. The mediator synthesises this information and plans the session strategies.
The second step is to conduct the mediation session. This, in Hodder’s experience, averages from 2–4 hours. The mediator follows these steps: