Our Approach to Mediation
Mediation is a solutions-driven, problem-solving process. Instead of pitting parties against each other, we facilitate an objective discussion on how to advance difficult situations. The goal of mediation is to find a practical solution and settlement that is acceptable to all involved. Our process is carefully managed and facilitated by one of our professional mediators. All FMC mediators have undergone mediation training of the highest standards. They are respected, senior members of the legal profession or are industry experts in their own particular fields. Their experience and training help parties identify issues, negotiate constructively and explore different ways of settling. Key to mediation is that parties make their own decisions, often with the help of their lawyers. They are in complete control of the outcome and do not run the risk of having an unfavourable decision imposed upon them by a judge or arbitrator. Leveraged properly, mediation is an effective approach to managing a wide-array of disagreements and conflicts.
Mediation as a Stance
Having a clear and strategic view on how to manage potential conflicts that arise as part of today’s dynamic business environment is a critical function in the boardroom.
FMC focuses on both prevention and resolution of conflicts to help organisations stay on track and in control of their businesses.
What this means
Mediation and the host of other services provided by FMC should be viewed as part of a collective management strategy that ensures that organisations are equipped to handle conflict be it in terms of disagreements with customers, vendors, suppliers and even internal staff.
We believe in helping you achieve cost and time effective solutions, that would allow you to minimise your risk when resolving difficult situations.
Can my case be mediated?
All types of disputes, regardless of the size of your claim or geographical reach can be mediated, so long as it is not criminal in nature.
Generally, all cases are suitable for mediation except cases where a precedent (eg class action situation) is required; and where only the courts can provide an appropriate remedy (eg injunction, personal protection order).
Why should I mediate?
1. Cost and time saving
At FMC, the majority of the cases are settled within one working day. Both individuals and organisations have reported enormous savings in time, and expressed how quickly they were able to untangle themselves from a potentially long-drawn dispute. Mediation sessions can be arranged quickly and in urgent cases, within 24 hours.
Some complicated matters may take months of preparatory work with your lawyers and in trial, incurring substantial costs to have your dispute resolved. While cost-savings will vary from case to case, the expediency of mediation ensures you keep your costs to a minimum.
2. Control over outcome
The parties settle only when they are satisfied with the terms that they have mutually agreed to, with the help of their mediators. The settlement terms are binding on the parties.
You have control over the outcome as you and the other party get to decide on the terms of settlement. By contrast, in a lawsuit or arbitration, you face the risk of having a judge or an arbitrator deciding against your case.
3. Preserves relationships
Mediation is non-confrontational and our mediators ensure communication is objective and positive, aiding in the improvement of relationships where possible. This approach has been particularly effective when there is the need to maintain an on-going commercial or working relationship, and experience has shown that settlement agreements resulting from mediation are more durable.
4. Private & confidential
Mediation is a process for parties who value their privacy as matters discussed in the mediation are generally confidential. FMC, its mediators and the parties involved are bound by an agreement and are generally prohibited from disclosing any information relating to the mediation. As a result, the parties are given a safe environment to explore issues and different solutions. As mediation is a ‘without prejudice’ process, any matter discussed during the mediation cannot be used against parties in court or in arbitration. In such a setting, parties are more likely to arrive at creative and pragmatic solutions to their disputes.
How do I apply for mediation?
You may apply for mediation under FMC’s mediation schemes by downloading and filling in the relevant application form. You may send it to us by email, fax or mail. FMC’s Commercial Mediation Scheme caters to disputes over $50,000. The Small Case Commercial Mediation Scheme caters to disputes up to $50,000.
What happens at the mediation session?
Generally, individuals should attend the mediation in person. For cases involving an organisation, you should appoint an authorised representative who can make decisions and settle on behalf of the organisation.
The mediation will be conducted in confidence, and no transcript or formal record will be made of the proceedings. Only the mediator, the parties and/or their authorised representatives and advisers will be permitted to be present during the mediation.
• There the process is flexible, a mediation will generally include the following stages:
• The mediator will begin with an opening statement to introduce the parties to the process.
• The parties will then be invited to share their concerns.
• The next step in the process will be to draw up a list of all relevant issues to be discussed.
• The mediator will then lead and encourage the parties to consider each issue in turn. At some point in time, the mediator may request to see the parties privately. They may subsequently be brought together again for further joint discussions.
• Where a settlement is reached in the mediation, the terms of the settlement will usually be recorded in writing and signed by or on behalf of the parties.
Do I need a lawyer to come with me to the mediation?
FMC encourages parties to bring their lawyers to the mediation because the lawyers play an important role in assisting the mediator and advising the parties throughout the settlement process. In addition, the lawyers usually assist parties to draft the settlement agreement. However, it is not mandatory for parties to be represented by lawyers during mediation.
FMC does not provide legal advice, and is unable to make recommendations on lawyers. You may wish to consult The Fiji Law Society or the Legal Practitioners’ Unit in Suva to find a lawyer.
How much will it cost?
FMC’s commercial mediation fees are pegged to the sum of the claim and counterclaim. For commercial disputes above $50,000, the mediation fee starts from F$800 (inclusive of VAT) per party per day or part thereof. For commercial disputes up to $50,000, mediation fee starts at $80.25 (inclusive of VAT) per party per hour or part thereof.
If you choose one of FMC’s Industry Mediation Schemes, the rates vary from scheme to scheme and are designed to make mediation affordable. Please refer to the fee schedules of the respective schemes for more information.
FMC Steering Committee
Hon. Justice Suresh Chandra
Hon. Justice Kamal Kumar
Bindula Devi Prasad
FMC Accreditation Committee
FMC Accreditation Committee was formed on the 3rd day of October 2016 by the Hon. Chief Justice. The Accreditation Committee was formed on the directives and guidance of the Hon. Chief Justice, comprising established and recognised leaders to provide advice on suitable persons who may serve as FMC Mediators from other institutions. The members oversee the training and assessment programme of potential mediators.
Hon. Justice Suresh Chandra
When is mediation appropriate?
Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbours, or business partners have a dispute, mediation may be the process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties and help them communicate with each other in a constructive manner.
When cases are resolved through mediation, the parties may save money that they would have spent on lawyer’s fees, court costs, and experts’ fees, which can total thousands of dollars.
How much does it cost?
There are costs involved to mediate cases in the Fiji Mediation Centre. The mediator’s charges are typically split between the parties.
If the parties choose a private mediator, they will be responsible for paying the mediator’s commercial rate for all services.
When may Mediation be Inappropriate?
Mediation may not be effective if one of the parties is unwilling to cooperate. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. For example, mediation may not be a good choice if the parties have a history of abuse or victimization.
Some cases may also present unique issues that would require the Court to determine the outcome or resolution.
Who must attend the mediation?
All parties, their counsel (if the parties are represented,) and persons with full authority to settle the case must personally attend the mediation, unless excused by the court or mediator for good cause.
What is the role of the mediator?
The mediator is a neutral intermediary whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options.
Relationships turned unpleasant when a family was in dispute over their property. Eventually the disagreement became so intense that the family members took the matter to the High Court. The parties were the registered proprietors of one undivided fourth share each in the property with improvements. A loan was secured over the subject property in 1979.
One of the brothers, Sam, had the property under his care and was collecting rental monies for the premises rented out. According to Sam, he was using the rental monies towards the repayment of loan and payment of rates and necessary maintenance of the property. The other property owners asked Sam to account for the rental monies received, including payments made for repairs and maintenance. However, since, he failed to do so, the other three owners instituted legal proceedings against him in the High Court in 2014. They applied for an Order either that the property be sold and distributed equally among the titleholders or that the other three proprietors purchase the whole property including Sam’s share. They also claimed that all rental monies being received from the property were to be deposited in the Court until the matter was resolved. This family dispute had built up over the years before the parties agreed to resort to Fiji Mediation Centre for a speedy resolution of the matter. All differences between the relatives were set aside, as they successfully reached an amicable solution. The parties agreed and understood that the mediation proceedings constituted settlement negotiations between them. They were able to maintain their sound relationships among each other. The family members were provided an opportunity to make decisions in the matter on their own accord. This was a win-win situation for the family.