Our 'Mediation Protocol' is a guide to the Rights and Responsibilities of participants.
Read them below, or access them on our website.
1.1 Mediation is a consensual, confidential and informal negotiation process in which parties to a dispute use the services of a skilled and independent mediator to assist them to define the issues in dispute, to develop and explore settlement options, to assess the implications of settlement options and to negotiate a mutually acceptable settlement of that dispute which meets their interests and needs.
1.2 The Mediator is an independent and impartial person in whom the parties to a dispute repose trust, respect and confidence to assist them to negotiate a settlement of that dispute without giving advice, expressing opinions or making decisions for them.
1.3 Generally, all types of disputes are suitable for mediation provided that all parties and their representatives are prepared and committed to negotiate toward settling the dispute in good faith.
1.4 The objective of mediation is to enable and empower the parties to negotiate and resolve the dispute promptly, cost effectively and confidentially rather than to have a decision imposed upon them by a judge, arbitrator or adjudicator. Mediation enables the parties to negotiate flexible and creative solutions which need not conform to strict legal rights or general community standards.
1.5 The purpose of this Protocol is to promote and encourage the negotiated settlement and early and cost effective resolution of disputes by mediation under the New Zealand Family Dispute Resolution Centre Ltd (the FDR Centre) Mediation Rules. These include the FDR Centre’s General Mediation Rules, and the FDR Centre’s Family Dispute Resolution (FDR) Rules (together the Rules).
1.6 The objective of this protocol is to provide a guide to the rights and responsibilities of all participants in the mediation process under the Rules.
1.7 This protocol is incorporated into the mediation process by operation of Rule 1.4 of the FDR Centre’s General Mediation Rules and Rule 1.4 of the FDR Centre’s Family Dispute Resolution (FDR) Rules. Any words defined in those Rules will have the same meanings in this protocol.
2.0 INITIATING MEDIATION
2.1 Any party to a dispute in respect of which the parties have agreed to refer such dispute to Mediation or Family Dispute Resolution by the FDR Centre, or words to the same effect, may apply for the appointment of a Mediator by completing the simple online application form on the FDR Centre’s website at www.fdrc.co.nz and attaching a copy of the parties’ agreement to mediate (the Application).
2.2 On receipt of the application and payment of the relevant Fee for the mediation as set out in Appendix 2 to the Rules, the FDR Centre will make the necessary administrative arrangements for the mediation.
3.0 APPOINTMENT OF THE MEDIATOR
3.1 Parties may select a preferred Mediator from the FDR Centre’s panel by agreement. On receipt of the Application and payment of the prescribed Fee, a Case Manager will appoint the most appropriate available Mediator to mediate the particular dispute on the date(s) that the parties have indicated as their preferred date(s) for the mediation.
3.2 In performing that appointment function, the Case Manager will have regard to but will not be bound by, any preference indicated by the Parties in the Application.
The parties must accept the appointment of the Mediator appointed by the Case Manager unless a party can demonstrate on reasonable grounds that circumstances exist that give justifiable doubts as to the Mediator’s impartiality or independence in the eyes of any of the parties.
3.3 The decision as to whether to appoint a substitute Mediator will be made by the FDR Centre promptly after consulting the parties and the challenged Mediator. The decision is of an administrative nature and is final and binding on the parties and the Mediator. It is not subject to appeal to the FDR Centre, or any court or other body having jurisdiction and the FDR Centre is not required to state or communicate reasons for its decision.
4.0 THE MEDIATOR’S ROLE
4.1 The Mediator is an independent and impartial person in whom the parties to a dispute place trust, respect and confidence to assist them to negotiate a settlement of that dispute.
4.2 A Mediator must not accept an appointment to act as Mediator in a dispute if any circumstances past or present exist that would be likely to give rise to justifiable doubts as to the Mediator’s impartiality or independence in the eyes of any of the parties to the mediation or to prejudice or impair the performance of the Mediator’s duties in the conduct of the mediation. The only exception to this rule is where, after full disclosure of all relevant facts, the parties to the mediation agree to the appointment of the Mediator.
4.3 In accepting an appointment, the Mediator assumes a continuing duty to disclose immediately to the parties to the mediation any circumstances arising in the future likely to give rise to justifiable doubts as to the Mediator’s impartiality or independence in the eyes of any of the parties or to prejudice or impair the further performance of the Mediator’s duties in the conduct of the mediation, until the mediation is concluded. The Mediator must immediately inform the FDR Centre of any such disclosure made to the parties to the mediation.
4.4 If during the course of the mediation, the Mediator discloses to the parties to the mediation any circumstances that arise which the Mediator considers might reasonably be likely to give rise to justifiable doubts as to the Mediator’s impartiality or independence in the eyes of any of the parties to the mediation or to prejudice or impair the performance of the Mediator’s duties in the conduct of the mediation, the parties must confer. Unless the parties agree to continue the mediation with the Mediator, the Mediator must withdraw from the mediation and advise the FDR Centre immediately.
4.5 The Mediator must maintain impartiality towards all participants at all times during the mediation process.
4.6 The Mediator does not have the authority to make binding decisions.
4.7 The Mediator’s role is to define and manage the conduct of the mediation process.
4.8 The Mediator may conduct the mediation in such manner as the Mediator thinks fit, having regard to the nature and circumstances of the participants and the matters in difference.
4.9 The Mediator may refer Parties to FDR to Preparatory Counselling where the Mediator considers those Parties will be assisted by that counseling process to prepare for and participate more effectively in an FDR mediation session.
4.10 The Mediator, in consultation with the parties, will establish basic rules and guidelines for procedure at the outset of the mediation conference. Such rules, may include, but are not limited to:
(a) the order of the presentation;
(b) the right of each party to speak freely and without interruption;
(c) that all participants are to treat each other with courtesy;
(d) the right for any party to take independent legal or expert advice during the mediation;
(e) the right for any party to talk to its advisers or representatives in private during the mediation;
(f) the right for any party to talk to the Mediator in private at any time during the mediation;
(g) the right for any party to terminate the mediation after consultation with the Mediator; and
(h) any basic common courtesy.
4.11 The Mediator will assist the parties to define and isolate the issues for resolution.
4.12 The Mediator will assist the parties to generate, explore, develop and evaluate options for resolution of the issues.
4.13 The Mediator will assist the parties to endeavour to reach an agreement that accommodates their mutual needs and interests.
4.14 The Mediator may conduct joint and separate private sessions with any or all of the Parties at any time before or during the mediation and any information exchanged during those separate conferences will be kept confidential and will not be divulged to any other Party unless the Mediator is specifically instructed to do so.
4.15 The Mediator will not give advice, express opinions, direct or coerce the parties into agreement, or make decisions for the parties.
4.16 Where agreement has been reached to settle the dispute in whole or in part, the Mediator will discuss with the parties the process for recording and implementing the agreement.
4.17 Where a partial agreement has been reached, the Mediator will discuss with the parties the procedures available to them to resolve the remaining issues.
4.18 If the Mediator considers that any settlement agreement reached may be illegal or impossible to enforce or uphold, the Mediator should recommend to the parties that they take independent legal advice.
4.19 The Mediator may suspend or terminate the mediation at any time if the Mediator feels unable to assist the parties to achieve resolution of the dispute.
4.20 On conclusion or termination of the mediation, the Mediator will destroy all documents and records provided by the parties for the purpose of the mediation.
4.21 The Mediator will maintain the confidentiality of the mediation save only for where publication, disclosure, or communication is necessarily required to prevent the safety of any person from being endangered, or to record participation in FDR and generate outcome forms.
5.0 THE ROLE OF A REPRESENTATIVE
5.1 The role of a representative is to assist the party they represent to prepare for the mediation and to participate effectively in the process.
5.2 A representative must cooperate with the Mediator and be courteous to the Mediator and all other participants.
5.3 A representative should act in good faith and advise the party they represent to act in good faith.
5.4 The role of a representative in preparing a party for mediation includes:
• explaining the meaning of the FDR Centre’s Mediation Rules;
• explaining the process including the Mediator’s role;
• explaining the meaning and nature of without prejudice and confidential discussions and negotiations;
• assisting the party to define the problem and the issues;
• assisting the party to identify the party’s needs and interests;
• exploring with the party why an issue has arisen and what kinds of things the party would like to see happen to assist with generating possible settlement options;
• assisting the party to evaluate the strengths and weaknesses of its case;
• discussing how the issues would be dealt with by a court and the possible range of outcomes;
• assisting the party to consider creative settlement options that would not be available in a court and the legality and feasibility of such options;
• advising the party of the costs that will be incurred up to and including the mediation and the likely costs if the dispute cannot be settled at mediation; and
• ensuring that the party has arranged for the persons representing it at the mediation to be able to make final and conclusive decisions and to have full authority to settle.
5.5 The role of a representative during the mediation includes:
• participating in a non-adversarial manner and co-operate with other representatives, participants and parties;
• conveying to the other participants such legal, technical, practical and personal matters as the party they represent may wish them to present;
• providing legal and or technical advice;
• providing counsel, support and encouragement;
• assisting the parties to define the problem and develop possible settlement options;
• Preparing and recording the terms of any settlement that might be reached for signature by the parties before leaving the mediation.
5.6 To the extent that a representative is required to disclose any information either by law or otherwise, the representative must immediately notify the parties.
6.0 THE ROLE OF A PARTY
6.1 A party must sign the Agreement to Mediate and pay the relevant Fee for the mediation as set out in the Rules in order to initiate the process.
6.2 A party must accept the appointment of the Mediator by the FDR Centre.
6.3 A party must provide the FDR Centre with the names of those persons (if any) who will be accompanying that party at the mediation no less than three (3) working days prior to the mediation session.
6.4 A party must attend the mediation session.
6.5 A party should be prepared to make a brief statement about the facts of the case, the issues in dispute, the outcome sought and other relevant factors and participate in the mediation process in good faith with the intention of seeking settlement.
6.6 A party must cooperate with the Mediator and be courteous to the Mediator and all other participants.
6.7 A party must comply with reasonable requests and directions made by the Mediator to promote the fair, prompt and cost effective resolution of the dispute before and during the mediation session.
6.8 A party must pay the FDR Centre’s Fees prior to delivery of the Service.
6.9 Each party will meet its own costs of the mediation regardless of the outcome.
7.0 THE ROLE OF A SUPPORT PERSON
7.1 The role of a support person is to provide moral and emotional support for a party.
7.2 A support person is not entitled to intervene or to participate in the mediation process in any other capacity whatsoever.
7.3 If a support person wishes to discuss any aspect of the process with the person they support, or to express an opinion on any matter under discussion, the proper approach is to suggest to the party that they support to request of the Mediator time out in private for the purpose of offering such moral and/or emotional support or counsel as may be appropriate.
7.4 All support persons must sign the Confidentiality Agreement attached to the Rules as a condition of their attendance at the mediation.
8.0 THE ROLE OF AN OBSERVER
8.1 The FDR Centre is committed to delivering professional and effective mediation services to the parties and to the ongoing training, support, mentoring and professional development of its Mediators.
8.2 Accordingly, the FDR Centre will, as a function of its overarching quality assurance and training programme, from time to time send a person or persons to observe the conduct of mediations conducted under its aegis.
8.3 An Observer may observe the whole, or part, or any number of parts of any mediation, but an Observer has no powers or rights whatsoever in relation to the conduct of any mediation and no aspect of the matters at issue or the mediation process should be discussed by any participant with an Observer.
8.4 The sole function of an observer is to report to the FDR Centre for the purpose of measuring and monitoring the professional development and performance of its Mediators.
8.5 Any observer must sign the Confidentiality Agreement attached to the Rules as a condition of their attendance at the mediation.
8.6 Any party may ask the Mediator that no observers be involved in their dispute. The Mediator must uphold the request of any party.
9.0 THE ROLE OF THE FDR CENTRE
9.1 The role of the FDR Centre is to manage and administer the mediation process in a professional, consistent and certain manner and to provide support and guidance to the parties and Mediators in respect of the mediation process.
9.2 In pursuit of those objectives, the FDR Centre will:
• maintain a comprehensive, informative and effective website;
• maintain a panel of competent, experienced and respected Mediators; and
• provide a fully administered nationwide mediation service through the office of its Case Managers, who will:
o select suitably qualified, experienced and respected persons for its panels; and,
o appoint Mediators who are competent, experienced and capable of discharging their duties to the parties independently and impartially in any particular case, and in the event that a Mediator becomes unable to act for any reason, appoint a substitute Mediator; and,
o provide all administrative functions necessary for the professional and competent delivery of its mediation services.
9.3 Prior to the first mediation session, the FDR Centre will advise the parties of the names and details of those persons who will be accompanying the parties at the mediation session.
9.4 The FDR Centre will maintain the confidentiality of the mediation.
10.0 TERMINATION OF THE MEDIATION
10.1 The mediation may be terminated at any time by a party after consultation with the FDR Centre or the Mediator.
10.2 The mediation may be terminated by the Mediator at any time if the Mediator feels unable to assist the parties to achieve resolution of the dispute.
10.3 The mediation must be terminated upon the signing of a settlement agreement in respect of the matters referred to mediation.
10.4 The Termination of the mediation does not relieve the parties of their obligation to pay the fees and expenses of the mediation incurred to that date in accordance with the schedule of fees and the conditions in Schedule B to the Rules.
This Protocol is intended to provide a guide to the rights and responsibilities of participants in the mediation process under the FDR Centre’s Mediation and FDR Rules. This Protocol is not intended to be comprehensive or a substitute for independent legal advice and parties must rely entirely on their own skill, knowledge and judgment when using this Protocol. Whilst every effort has been made to ensure that the information in this Protocol is correct, all persons wishing to use this Protocol should take independent legal advice. The FDR Centre, its agents and its employees, do not assume any liability to any person for any loss or damage caused by any error or omission herein and expressly disclaim any and all such liability whether involving negligence, breach of contract, breach of fiduciary duty, or breach of statutory duty or any other duty, and any and all such liability is expressly disclaimed.
This Protocol is for the use of parties to mediations undertaken by the FDR Centre only and is subject to copyright. No part of this document may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopied or otherwise without the prior approval of the FDR Centre. In particular, the use of the Protocol for any commercial or promotional purpose without the prior approval of the FDR Centre is absolutely prohibited. All rights including translation reserved.
© New Zealand Family Dispute Resolution Centre Limited 2014.