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What is mediation?

Mediation in Vanuatu is an option available to parties with a case before the court to try to solve their disagreements without a Judge. It is an option which the Judge may put to parties and which they are free to accept or not. For any mediation to proceed, all parties must indicate their consent.

Difference between court trial and mediation

• Mediation gives the parties an opportunity to be actively involved in the process and the outcome. In other words, the parties decide what the final order of the court will be and not the court.

 

• In a trial both parties are trying to persuade a Judge that they are right. In mediation the parties are trying to persuade each other to see their side of the story to get them to agree to a compromise.

 

• In a trial there is a clear winner and loser. Someone always leaves unhappy and dissatisfied. In a mediation each person leaves satisfied that they did not lose everything but left with at least something they can be happy about.

 

• In a trial a Judge is there to decide simply who is right and who is wrong. Mediation promotes a wider set of aims such as preserving relationships.

 

• A court trial is very formal and very strict rules must be followed. If these rules are not obeyed there can be serious consequences. Mediation is very informal and the main rules are to be present and actively participate.

Reasons to mediate

• Mediation is quicker and cheaper than a trial.
• Mediation is confidential.
• Obedience to mediation agreements is more likely than with court orders as parties are the ones deciding what they want and are prepared to do.
• Relationships between the parties may be maintained, improved or at least end respectfully.
• As a litigant you may feel a greater sense of satisfaction arriving at your own solution.
• You get to communicate directly with the other party and not through lawyers or the court.
• Mediation allows each of you to see the others side of the story and why a certain action may have been taken and therefore can bring better understanding.
• In mediation there can be numerous options available to settle while a trial may only allow for one outcome.

 

 

Would your case benefit from the assistance of a mediator?

• You want to try to settle but find it difficult to initiate negotiations with the other side.
• Both you and your lawyer would benefit from a third party helping to guide the negotiation, either because your lawyer or you lack the experience or confidence or the personalities of the parties make it difficult.
• You have tried to negotiate a settlement but have reached a deadlock.
• Your lawyer has been negotiating a settlement alone and you want to be more involved in the process.
• The issues in the case are complicated and it would help for a third person to help to manage the process.

How mediation works

Before the day for mediation the parties and their lawyers will meet with the mediator to discuss what documents or other relevant information that might be needed. Each will be asked to go away and think about or prepare what they wish the other side to know and what they want and what type of compromised offers they might be prepared to make to the other side.

On the day of mediation all parties meet with the mediator in joint session where the mediator will explain the process and what is expected of each person. All matters discussed at mediation are confidential and cannot be used against you later on if the mediation fails or in any other court case.

You are free to attend with your lawyer or on your own. Even if you attend with your lawyer the mediator will ask you to sit closest to him/her and will encourage you to speak about the matter and say exactly what you want. Your lawyer is there to offer you advise if you feel you need it and to help to move the process along. Your lawyer is not there to argue as to why you are right and the other person is wrong. If your lawyer is obstructing the process the mediator can ask him/her to leave.

In the mediation either the mediator or you can ask for a private session with the mediator where you may wish to tell the mediator facts you may not want revealed to the other side and the mediator cannot reveal those facts except with your permission. Either you or the mediator, with your permission, can put offers to the other side. Once an agreement is reached the mediator will help all the parties to reduce it to writing. All parties must sign and it will then be made an order of the court and must be obeyed as if the order was made by a Judge.

Remember!Neither the mediator nor your lawyer can force you to agree to a settlement. This is your decision alone. They are only there to help you to see the big picture and to find other ways to settle your matter.

Types of disputes that can be mediated

• Contracts
• Personal injury
• Property damage
• Boundary disputes
• Neighbour disputes
• Child custody agreements
• Division of matrimonial property
• Payment of monies owed

Costs of mediation

Compared with the amount of time and money involved in going through a court trial mediation is much less expensive.

Lawyers’ fees for a court trial can range anywhere from VT300, 000 to over VT4 million depending on the type of matter. In addition, trial fees to be paid to the court, come to VT30, 000 per day. Mediation per day costs each party VT7, 500.

Length of mediation

Most mediations last one day but can be longer depending on the difficulty of the matter and the parties involved.

Who conducts mediation

At the moment only the Master and Deputy Master of the Supreme Court are authorised to conduct all mediations.

 

DISCLAIMER – this is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.     

If you have any questions or require clarification on the above please contact the writers at vanuatulaw@gmail.comor contact us at website www.pawthelaw.info