Mediation Guidelines

1. Where appropriate, Mediation is an alternative method of trying to resolve complaints.

2. It is a process where the parties to the complaint try to reach a solution through agreement with the assistance and support of a mediator rather than through an immediate investigation of the complaint and a decision from this Office on the complaint.

3. If a mediation is to take place, BOTH parties to the complaint must be willing and elect to participate in mediation. If one party wants to mediate the complaint and the other party does not, then no mediation will take place and the matter will proceed to investigation and adjudication.

4. Mediation is an option that is available to both parties. It is a voluntary stage in the handling of a complaint by this Office. Parties to a complaint are not obliged to partake in mediation if they do not wish to.

5. If BOTH parties decide to attempt mediation, the complaint will be assigned to a mediation officer (the “Mediator”).

6. The Mediator will then contact both parties to schedule the mediation.

7. Generally speaking, mediation typically involves meeting(s) between the Mediator and both parties. The venue for any mediation meeting will be decided by the Mediator and the date and time of any meetings will be decided by the Mediator, having consulted with both parties.

8. Mediation is an informal process. It is also confidential and is conducted in private.

9. The Mediator’s role is to try to facilitate an agreed resolution of the complaint between the parties. The Mediator is not a decision-maker (unlike a Judge).

10. The Mediator is independent. He/she does not act for (or side with) either party to the dispute. His/her role is to independently assist both parties in reaching an agreed resolution of their differences.

11. Participation in a mediation by the parties to a complaint is voluntary and a party may withdraw from the mediation at any time.

12. If either party chooses not to engage in mediation, then the complaint will be dealt with by the Office by way of investigation and adjudication.

13. If both parties agree to mediation, but during the course of a mediation, either or both of the parties withdraw from a mediation or if the Mediator forms the view that the attempt is not likely to succeed or if the attempt to resolve the complaint by mediation is unsuccessful, then the mediation will come to an end. Both parties will be informed by the Mediator that the mediation is at an end and the complaint will then be subject to investigation and adjudication by this Office.

14. If, during the course of a mediation, the parties reach an agreement to resolve the complaint and both parties agree the resolution/outcome, then that agreement will be recorded in writing, signed by both parties and will become legally binding on the parties. The complaint will be at an end and so it will not be referred to investigation and adjudication (final decision) by this Office.

15. It should be remembered that in a mediation, a party cannot be forced to accept a settlement/outcome. The Mediator will not impose a decision on the parties. Both parties must voluntarily agree the outcome.

16. The Mediator has no authority to settle the dispute himself/herself or to act on either party’s behalf.

17. Evidence of anything said or admitted during a mediation (or an attempted mediation) and any document prepared for the purposes of the mediation, are not admissible in any subsequent investigation of the complaint (unless the person who made the admission or to whom the document relates, consents to its admission) or in any proceedings before a Court. If however during the mediation an agreement is reached between the parties, that agreement will be recorded in writing, signed by both parties and will then be legally binding.

18. It is not possible to advise how long a mediation might last. It will depend on a number of factors, including the attitude of the parties involved in the mediation and the progress (if any) being made at a mediation.

19. Any costs or expenses incurred by either party to a complaint by participating in the mediation process will not be paid for by the Mediator or this Office. Any such costs/expenses are a matter for the party who incurs the costs/expenses to bear himself/herself.