What is Mediation?

Mediation is a process which uses a qualified, neutral person to assist the parties in a dispute to reach an agreement or settlement. The Mediator’s job is to support the parties (and their lawyers, if they have them) to talk to each other in a respectful and constructive way.

The Mediator encourages disputing parties to open their minds and be willing to hear and see an alternative point of view to their own. Mediation can save money and is less stressful if disputes can be resolved without going to Court.

Mediation focuses on moving forward and finding a resolution, rather than laying blame. Mediation allows parties to explore available options for a potential settlement, relating to financial issues and care of children.

Discussion may involve the fair division of current assets and liabilities and how each party will contribute towards the present and ongoing financial support of their children. Following this, a Mediator may encourage both parties to consider how long-term decisions affecting the children’s welfare will be made, focussing upon a cooperative and amicable result. Mediation will primarily centre around the current issues that the parties have in dispute, rather than focusing on the past.

The Mediator will provide the opportunity for the parties to reach an agreement about disputed matters, without a Judge or a Court imposing decisions upon them, allowing the parties to retain control.

When is Mediation suitable?


Parties engaged in Family Law proceedings can participate in Family Mediation to resolve a dispute at any time, either prior to, or during, Court proceedings.  Courts will now order parties to attend Family Mediation in the majority of matters to reduce the legal expense and time in Court for those matters which have not been settled through other avenues.

In some circumstances, Mediation will be inappropriate. These situations arise where there is a Family Violence Restraining Order in place, or if one of the parties cannot be located. It will not usually be appropriate where the issues are urgent.

Mediation Particulars

Mediation Particulars are provided in written form by each party, to the other side and the Mediator. This information is used by the Mediator to support the parties to identify the issues in dispute, and then move towards developing potential options and mutual resolution.

The Particulars may be accompanied by a schedule of Assets & Liabilities, allowing both parties to see and understand the current financial position in black and white, and therefore to be hopefully realistic about resolving any financial issues.

What can I expect at the Mediation?

Parties can choose to represent themselves at Mediation, or they may choose to be represented by a lawyer. Courts may refer matters to Mediation where no previous Mediation has been undertaken, and it is suitable to do so.

Each party can arrange to bring a person to help support and advise them during the Mediation. This will usually be the lawyer who is representing them, and can also be a trusted person in a supportive role. However, a non-lawyer will not be able to participate in the Mediation itself, without the agreement of the other party.

Both parties have the authority to make decisions on any proposed settlement unless other arrangements have been made. This allows the parties to retain control over their financial issues and the arrangements for their children.

Mediation is as confidential as the participants wish it to be and as far as the law allows. This will be discussed between the Mediator and the participants at the start of the Mediation.

The Mediator will speak directly to each party and the lawyers present. Either party can talk openly, as long they remain respectful to all of those present.  Each party will have an uninterrupted opportunity to explain their view of the dispute. 

The parties do not have to agree to resolve their legal dispute at Mediation. Both of the parties do have to cooperate, listen to the views of other party and consider options for resolution. Listening to and considering other options may lead to a resolution which may not be available if the parties resort to Court proceedings and going to Trial.

There is no set structure for Mediation, and different Mediators might suggest different processes, depending on their experience and what will best suit the parties’ situation. However, Mediation will usually involve the following steps: 

  • The Mediator will introduce everyone attending and set the context by asking for everyone’s agreement to the Mediation process and ground rules. 
  • The Mediator will give each party a chance to explain their view of the issues in dispute. 
  • The Mediator will then guide the parties in discussing the issues in dispute, one by one. 
  • The Mediator may take time to talk to the parties separately and give the parties time to talk to their lawyers or support people.
  • If the parties come to an agreement, the Mediator will help them decide if or how they want it recorded. If it is in writing, the Mediator may do this. If there are lawyers present, they will usually be responsible for ensuring that the agreement is a true reflection of what has been agreed between the parties. Both the parties need to be sure that they understand what they are agreeing to.
  • When an agreement is made at Mediation, the parties will need to agree whether it will be an informal agreement made 'in good faith' or whether it will be legally enforceable. If an agreement is simply 'in good faith' everyone relies on the promise of the others to do what has been agreed and cannot usually be enforced by the Family Court.

What can I do if Mediation doesn’t work?

Not all Mediations will be successful. Sometimes, only a few of the issues in dispute will be resolved.

If Mediation does not result in an agreement, both parties are still able to commence proceedings in the Family Court or proceed to Trial if an Application has already been lodged.

Both parties still have the option available to them to negotiate a settlement throughout the proceedings. So if Mediation was not successful, the matter might still be resolved without the need for a Trial, by further discussion between the lawyers or the parties.

 

 

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