(i) Babette Smith as a Mediator

(ii) Q&A about Mediation

(i) MEDIATION is a skills-based occupation for which experience counts. In eight years full-time practice as a mediator/conciliator Babette Smith has accumulated more than 1000 hours of valuable hands-on experience.

Babette specializes in business and family law matters, strata title, farm debt, wills and estates and workplace disputes arising in both the public and private sector. She holds appointments to the following mediation panels:

* Institute of Arbitrators & Mediators (IAMA)
* NSW Legal Aid Commission Family Mediation
* NSW Farm Debt Mediation Program
* Department of Fair Trading - Office of the Mediation Advisor on Franchise
* Department of Fair Trading - Strata Title Mediation
* IAMA panel of accredited mediators in industrial relations

Accredited by the Institute of Arbitrators & Mediators (IAMA), she also acts as a mediation coach for workshops conducted by the Institute and for The Trillium Group.

A graduate of Sydney University (Bachelor of Arts), Babette trained as a mediator/conciliator with LEADR (Lawers Engaged in ADR). Additional training has included many specialised workshops.

Over twenty years in the corporate workforce gave Babette extensive experience in general management, staff management, finance and marketing. Positions held ranged from National Marketing Manager for The Hoyts Corporation to CEO of the NSW Bar Association. In these positions, she acquired financial and business expertise, much experience chairing and/or facilitating meetings, as well as strategic planning and managing staff. Her communication skills are highly developed as evidenced by her authorship of several books (including the groundbreaking "A Cargo of Women" and "Australia's Birthstain") as well as her role as legal columnist for the Australian Financial Review 1997-1999. Collectively, this experience informs Babette's practice in ADR.

Babette holds the statutory appointment of Official Visitor to one of NSW maximum security correctional centres. She is a member of the NSW Health Professionals Registration Board.

In addition, she gives service to the community through appointments to the Women's Advisory Board of the Department of Corrective Services and the Legal Aid Review Committee of the NSW Legal Aid Commission.

(ii) Babette Smith talks about mediation

Why mediate?
Mediation is quicker than waiting for a court hearing.
It can be arranged quickly often at a few days notice and frequently in a location designed to suit both parties.
The earlier that parties try to resolve their dispute the more likely the conflict will be prevented from escalating.
The development of adversarial, entrenched positions will be cut short and replaced by the interest-based negotiation of mediation. If children are involved, this aspect is particularly valuable.
Mediation increases the likelihood that parties can come out of their dispute on speaking terms and able to work constructively together if necessary.
The process is confidential a feature, which encourages the parties to talk frankly without fear that what they say can be held against them..
It is also informal. No one is bound by rules of evidence about what can or cannot be said.
The parties are encouraged to talk themselves rather than listen while someone else presents their case but there is nothing to stop them asking a support person or lawyer to explain a point for them. Cross-examination is not allowed in mediations.

Confidentiality
Information disclosed in the mediation to the mediator, the other party or anyone attending is entirely confidential:
* the mediator keeps no transcripts or records of the mediation session. Any notes taken during the process are destroyed at the end of the mediation.
* the mediator cannot be compelled to divulge any information concerning the mediation to anyone
* only the parties keep a copy of the settlement agreement

Agreement to Mediate
Mediation is voluntary. The parties sign an agreement that acknowledges that they have agreed to mediate and have appointed the mediator who is named in the document. This document also contains a confidentialty clause which on signing all parties agree to observe.

What is the cost?
Mediation is cheaper than going to court. Most mediations last only a few hours or one day. Only a few run over to a second or third day.
Parties usually share the cost of a mediation 50-50.
Costs include the hire of a room (if applicable, many are free of charge)
Travel costs - if any (apart from the occasional tank of petrol, I do not usually charge travel costs).
My fees - these are calculated from an hourly rate which I can give you on enquiry.
They are payable in advance on the day to increase the neutrality of my position as a mediator, for example regarding the length or conduct of the mediation

Can I bring a lawer or support person?
In my experience lawyers can be very helpful in a mediation. Their role is different to a courtroom where they talk more. In a mediation they are there for you to seek their advice at any time or to intervene if they feel you need help. Many lawyers have considerable experience now in attending mediations and can often make helpful suggestions. Any party can bring a lawyer if they wish.

A support person for one party can attend a mediation only with the consent of the other party. This arrangement ensures that both are comfortable about who is in the room during their discussions. Support persons are welcome if both parties agree.

What does the mediator do?
The great benefit of a mediator is that they are neutral - they have no interest in how your dispute is resolved only that it will help you if it is. As a mediator, I know nothing about you or the history of the dispute except what you tell me so I approach it with no preconceptions. Being detached from the conflict makes it easier to help you identify the key issues that are in dispute, explore alternatives that you may not have considered before, develop different options for reaching agreement.

I do not give advice or make decisions for you but simply guide your discussion through the process.

Ending the mediation
Either party can terminate the mediation at any time. Before taking this decision, it is worthwhile to spare a few minutes to discuss your reasons with the mediator.

As a mediator, it is my responsibility to terminate a mediation if there is in my judgment no chance at all of agreement being reached. I would of course also terminate a mediation if one party was threatening another or disclosures of a criminal nature were made.

The mediation process
The parties viewpoint:
I begin by asking each of the parties in turn to tell me how they see the dispute. What they think needs discussing. How they feel about these issues. At this stage I only want to hear their own point-of-view. Discussion or answering the other party will take place later.
Discussion list or agenda:
After taking some notes while they talk and clarifying with the parties that I've heard them correctly, I will draw up a discussion list or agenda based on what they have both identified as the issues in dispute. They can add other headings if they feel something has been overlooked.
Exploration of the issues in joint session:
With the list as a guide, I will then help them work their way through the issues identified. This section is usually the longest part of the mediation. It allows the parties to express their feelings about the dispute as well as discusss the facts of what has occurred.

The mediator contributes by helping the parties to discuss and clarify topics, by summarising points of agreement, by managing the overall discussion so it is constructive and fair. My job as a mediator is to ensure that each party gets a 'fair go' and no person dominates the discussion to the detriment of the other.

The joint session continues while progress is being made.

Private sessions
There is usually a point when it is helpful to talk to the parties in private, each in turn with their lawyer or a support person present. This gives the parties a chance to raise anything they have not wanted to discuss in the joint sessions. It is also a useful time for the mediator to check how the parties are feeling about progress to date, the usefulness of the discussion so far and to 'reality check' any undertakings they have been suggesting or options they have refused with a view to clarifying the potential for an agreement that will last.

Subsequent joint session
Very likely this will include a period of brainstorming options to solve impediments that are preventing agreement. The parties will then move on to negotiating the fine details of an agreement.

Settlement agreement
The agreement reached by the parties can be documented on the spot and signed either as a full record of the agreement or just as 'Heads of Agreement' which is a less formal document but constitutes an immediate written record of what has been decided. Subsequently the parties can have lawyers formally document the agreement and, where applicable, lodge it for them with a court.