Terms and Conditions to Mediate
Welcome to Bendigo Mediation. We provide workplace and commercial mediation and family dispute resolution services (Services).
In these Terms and Conditions, “we” and “us” refers to Concordia Connect Pty Ltd trading as Bendigo Mediation and “you” refers to any individual who proposes to engage us and our Services.
Accepting our terms and conditions
When you propose to engage us or agree to work with us and our services by way of accepting an invitation to mediate, you agree to our Terms and Conditions as published on our website www.bendigomediation.com.au (Website) at that time. Before you finalise an instruction to engage us or work with us, you should check the Website for updates to the Terms and Conditions and ensure that you understand and agree to them. When you engage us or agree to work with us, you are telling us that you understand and agree to abide by the current Terms and Conditions. If you do not, you should not engage us or agree to use our Services.
Fees
We charge each party separately and the fees depend on how many sessions you need.
We will provide you with a quote at the time of your enquiry. Our rates are subject to change without notice but will be confirmed with you at the time your booking is taken. Full payment is required upfront at the time of booking. All fees are quoted on a GST exclusive basis unless otherwise specified and GST is payable in addition to the quoted fee.
If there is additional work required or requested which is out of scope of the original quote, we will provide you with a further quote for that additional work.
If a mediation date is cancelled or postponed, an additional fee may be charged.
If your session runs over time, we may agree for the session to continue and our hourly rates will apply to that extra time, calculated in blocks of one hour.
If you do not pay an invoice or adhere to an agreed payment plan as per the ‘Payment Authority Form’ on time, unfortunately, we will be required to pass on interest at the rate of 10% annually calculated daily and compounding monthly plus all legal fees and/or debt collector fees incurred by us.
Our Role and Responsibilities
The role of a mediator is to chair the mediation, set the ground rules, determine the procedure and facilitate the drawing up of any settlement agreement reached. We do this with the overarching focus of assisting you to reaching your own mutually agreed resolution.
We promote an environment and discussion that is safe and fair. We will facilitate collaborative negotiation which looks at each person’s point of view, and each person’s interest and concerns in proposed outcomes. Where we are conducting family dispute resolution (FDR), our goal is to help you reach an agreement that is in the best interest of any children.
We are required to be neutral and not have a conflict of interest that could bias the process. This means that we cannot obtain any direct or indirect benefit from a specific outcome of the dispute or demonstrate a preference or bias towards either party because of a relationship or potential personal gain for the mediator.
We cannot and do not provide any legal or financial or any other kind of advice. If it becomes apparent to the mediator that you are misinformed about legal matters, they may recommend that you obtain legal advice and/or provide you with legal information. The mediator may also make comments or provide other information during the mediation. No such information or comment is to be construed as advice.
Your Role and Responsibilities
You and the other participants are each individually responsible for resolving your dispute. You should ensure that the participants have sufficient authority to settle or compromise the dispute.
All parties must have the mediator’s consent to bring any adviser or advocate to the mediation. The mediator may place conditions on that consent in their absolute discretion.
Mediation is a voluntary process that you can end any time however it is encouraged that you attempt to resolve your issues before going to court. In FDR, you are required to attempt to resolve your issues by FDR before going to court for children’s matters unless an exception applies and highly encouraged for financial matters.
The following ground rules are non negotiable and must be followed by all participants:
· Respectful Communication: mediation is a business-like process and participants are expected to communicate politely and constructively. The mediator will direct you to cease any objectionable, aggressive or disruptive language or behaviour.
· Future Focused: blame or dwelling on the past will not assist with the mediation process. To work, the participants need to focus on reaching a resolution to current issues. The mediator will redirect discussion towards practical problem solving.
· Active Listening: sometimes it is hard to say or hear what a person is really trying to communicate. The mediation process is designed to help people see others point of view and safely reveal what is important to them. The mediator will control the flow of conversation if necessary to ensure that each participant has the opportunity to be understood.
If you cannot abide by our ground rules, we may determine to end the mediation in our professional discretion.
There are legal and financial consequences to many outcomes that may be agreed at mediation. It is your responsibility to inform yourself both prior to and during a mediation as to the legal and financial implications of decisions that you make.
You must not disclose any information discussed during mediation to any outside party except for the limited purposes of:
· obtaining advice from your professional advisers such as an accountant or lawyer;
· people within your field of intimacy being your close family members
· anyone that you both agree to share information with such as a child consultant
You must inform those persons that the information was disclosed in mediation and is confidential and that they are required to also maintain confidentiality of that information.
Mediation Process
Mediation sessions are booked for 3 hours. Simple agreements can often be reached on one session and most agreements will require 2-3 sessions. We will tailor the number of sessions to your particular circumstances.
The mediation process begins with a mandatory individual pre-mediation process to determine whether mediation is appropriate. The mediator will take into account:
· Equality of bargaining power
· The emotional, psychological and physical health of the people involved
· If there is a risk to any person’s safety
· If there is a risk that a child may suffer abuse
· Any history of violence between the people involved in the dispute
· Any other matter the mediator considers relevant
The mediator must be satisfied that each party to the mediation can negotiate freely. If in their professional discretion they are not satisfied or hold other concerns, the mediator will not proceed with the mediation.
During the mediation we take notes with a view to documenting any agreement reached. We can provide simple draft heads of agreement, balance sheets and parenting agreements within the fee you pay us for the mediation. Where there are complexities in the circumstances or what has been agreed, we will advise you that additional time is needed to draft those documents such as when you wish for us to assist you in putting together draft consent orders. These documents should not be considered to be the final version and should be approved by your independent advisers before you rely on them for any purposes other than documenting for your own records what was agreed at the mediation and assisting you to instruct your advisers.
Invitation to FDR and Response Policy
To ensure the FDR process adheres to the Family Law (Family Dispute Resolution Practitioners) Regulations Act 2008 Part 7: 26 (4) the following policy applies to the FDR invitation.
• When invited to participate in Family Dispute Resolution, the invited party will be given five business days to respond either accepting or declining the invitation.
• If the invited party accepts the invitation, an appropriate date for the intake session must be found within two weeks of the accepted invitation.
• Four separate dates and times (as much in line with customer preference as practical) for an intake or mediation session within the two weeks will be offered.
• If the invited party declines all four offered times and dates and/or reschedules more than once (prolonging the intake by more than two weeks after the invite), the invitation will be classed as a refusal to participate. At the mediator's discretion, a section 60i may be issued to the initiating party if requested.
Timeline for mediation
To avoid delays and ensure a timely response for all parties, the joint mediation session is to take place no more than two weeks after both intake sessions have been completed.
If necessary, four separate dates and times (as much in line with customer preference as practical) for the mediation session within the two weeks will be offered.
If the parties decline all four offered times and dates and/or reschedule more than once (prolonging the mediation by more than two weeks after the completed intake session), the mediation will be classed as a refusal to participate. At the mediator's discretion, a section 60i may be issued to the requesting party.
Confidentiality
Mediators must not disclose communications made unless disclosure us required or authorised which:
· In FDR matters, will be governed by the Family Law Act 1975 (Cth); and
· In the case of other matters, will be governed by National Mediation Accreditation Standards (NMAS) by the Mediators Standards Board.
Mediators are mandatory reporters meaning that we must disclose a communication made in a mediation if it relates to suspected child abuse or any other mandatory disclosure obligations we have.
We may also disclose communications made if we reasonably believe that disclosure is necessary to:
· Protect a child from risk of physical or psychological harm
· Prevent or lessen a serious and imminent threat to the life or health of a person
· Report or prevent a likely offence involving violence to a person or intentional damage to property
· Assist an independent children’s lawyer to properly represent a child’s interest
We may also disclose communication if we have that person’s consent to make the disclosure, or if the person is under 18, with parental consent.
You agree not to call the mediator as a witness, consultant or expert in any proceedings or litigation arising in connection with the dispute or the mediation.
Anything said or any admission made in mediation is not admissible in court or legal proceedings. All discussions shall be on a without prejudice basis. No offer, proposal or comment mad at mediation is a binding offer or agreement unless committed to writing and signed by all parties.
Communication made when a professional consultation is being carried out, on referral from an FDR practitioner is also inadmissible in any court or proceedings in any jurisdiction. Ask your FDR practitioner for a referral if you would like to ensure that communications with other professionals you consult with are inadmissible in court proceedings.
Records
No recording of the mediation is permitted.
The mediator may only release information at the end of the mediation in accordance with instructions agreed to by both parties. For example, the mediator may write up and email to you the points of agreement from your mediation session or supply a copy of your agreement to your legal adviser if you give permission to do so.
We retain in physical or electronic form all forms completed during your mediation process. All reasonable efforts are made to ensure that your private information remains secure.
Breaks and terminating mediation
You may request a short break or a private session at any time. These pauses are an opportunity to take time out from the exploration and negotiation to speak confidentially with the mediator and/or an adviser.
If at any time, we determine that the mediation is not suitable or appropriate for any reason, we may terminate the session.
Cancellation Policy
If we need to cancel
There are some circumstances where your mediator may be unavailable such as in the event of illness or emergency. Where possible and appropriate, we will endeavour to arrange to substitute another mediator to conduct the mediation process.
However, we may need to cancel your booking. Where we do so, we do not need to provide you with a reason but will provide you as much notice as is possible. Our liability is limited to refunding all fees paid by you for the cancelled Service.
We will not be liable for any delay or failure to perform our obligations if such delay is due to any circumstances beyond our reasonable control
We reserve the right to leave or terminate a mediation at any time in our professional discretion and without providing reason to you.
If you need to cancel
If you need to cancel a booked session, we ask that you let us know as soon as possible. We encourage you to rebook for another time wherever possible.
Any cancellations within 48 hours of your booking will unfortunately result in forfeiting 50% of the initial session fee. This is because we will have not taken any other bookings at the time that your booking was for.
Complaints
A formal external independent complaints process is available if you believe the mediator has breached any guidelines or obligations. Please email admin@bendigomediation.com.au to discuss your concerns at first instance. If we cannot resolve your concerns, we will escalate the matter to out external dispute resolution process.
Liability and Indemnity
Our Services are provided according to our professional discretion, experience, intuition and judgment. We make no representations or give any warranties or guarantees as to the suitability of our Services for any particular purpose or that any particular outcome will be achieved.
To the maximum extent permissible by law, we exclude all liability of any kind, howsoever arising, including without limitation consequential loss such as lost profit, lost opportunity, lost revenue, damage to goodwill, third party loss, or any other special, indirect or consequential loss resulting from or incidental to your engagement with us or the Services. Where we cannot completely exclude liability, our liability to you is limited to refunding the fees you have paid us in respect of the affected Services or the cost of having the Services provided again, whichever is higher.
You agree to indemnify us, our directors, officers, employees, contractors and our related entities from and against all actions, claims, demands costs, expenses, damages incurred, suffered or arising in connection with any negligence, misuse of our Services, other act or omission, or any breach of these Terms and Conditions by you or any person for whom you are responsible.
Applicable Law
Your use of our Services is governed by the laws of Victoria, Australia. Nothing in these Terms and Conditions is intended to exclude your statutory rights as a consumer under the Australian Consumer Law.
If a provision of these Terms and Conditions is found to be void, invalid, illegal or unenforceable under the law, that provision must be read down as narrowly as necessary to make it valid or enforceable. If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is to be severed from these Terms and Conditions without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms and Conditions.
How do we resolve a dispute?
If a dispute arises out of or relates to these Terms and Conditions, neither party may commence any tribunal or court proceedings until they have complied with this clause.
A party alleging that a dispute has arisen must notify the other party, particularise the dispute and what it considers must be done to resolve it. Within 7 days of the notice, the parties must attempt in good faith to resolve the dispute by negotiation. If the dispute cannot be resolved, the parties must agree to participate in mediation with a mediator appointed by agreement of the parties or if they fail to agree within 7 days, as appointed by the President of the Law Institute of Victoria.
The parties will share the costs of the mediator and any venue hire costs equally. The parties must otherwise each pay their own costs associated with the mediation. All communications concerning negotiations made by the parties arising out of and in connection with this dispute resolution procedure are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
This clause does not apply to circumstances where a party wishes to apply for an urgent injunction.
How are changes made to these Terms and Conditions?
These Terms form the whole agreement between us and may not be varied orally.
We may amend these Terms and Conditions from time to time, with or without notice to you. If we do so, we will post the revised Terms and Conditions on our Website. We recommend that you visit our Website regularly to keep up to date with any changes.
These Terms and Conditions were last updated on 1 July 2022.