In most family law and estate litigation disputes, the parties are required to attend mediation to attempt to resolve their dispute.
This article describes what is involved and addresses the most commonly asked questions about mediation.
What is mediation?
Mediation is a process in which an independent person assists two or more people (or organisations) in dispute to negotiate and to make mutually satisfactory decisions about the outcome of their dispute. It is a form of ‘assisted negotiation’.
Is mediation compulsory?
In the family law context, mediation is mandatory in parenting disputes. Before Court proceedings can be commenced, parents must attend a mediation with an Accredited Dispute Resolution Practitioner. There are some exceptions to this requirement including any immediate risk of harm to the children or family violence factors. The role of the mediator in this context is to assist the parties to negotiate about parenting arrangements and to make an assessment about whether each party is making a genuine effort to do so. In the majority of family law financial disputes and estate litigation, mediation is an important step in the litigation pathway because the Court expects parties to attend mediation before the Court allocates judicial resources to determine the dispute outcome.
Because mediation is a usual requirement in the majority of civil disputes, lawyers will often encourage their clients to consider mediation prior to commencing costly Court proceedings. Court proceedings are both time consuming and costly and early resolution of the dispute at mediation can significantly reduce financial and emotional costs.
Benefits of mediation
In the majority of cases, settling the dispute using the mediation process is cost effective when compared to litigation.
The parties are in control about the outcome, rather than having a stranger impose a decision which is based on the limited information that is before the Court.
Everything said at the mediation is confidential (unless agreed otherwise) – unlike the potential publicity of Court proceedings.
The mediation process is ‘without prejudice’. If a settlement is not reached, litigation may continue without each party needing to worry about having ‘given away’ anything that the other could use in Court.
The mediation can be arranged at a time and venue convenient to the parties as opposed to waiting in lengthy Court lists for a hearing.
Nothing is binding upon the parties until an agreed settlement is reached.
Unlike Court proceedings or protracted negotiations through lawyers’ letters, during a mediation there is an opportunity for direct communication between the parties about the things that matter to them with the likelihood that both parties feel heard and ultimately more satisfied with agreed outcomes of the dispute.
The role of the mediator
Ahead of the mediation the Mediator will require information about the dispute. Typically this involves each party (or their lawyer) preparing a mediation document setting out the background to the dispute and the issues to be resolved. In some cases, the mediator will meet with each party ahead of the mediation to clarify the issues and the process of negotiation.
The mediator listens to everyone’s point of view, talks to the parties privately and together, assisting to negotiate a settlement.
The mediator’s role is to create a safe environment for the parties to negotiate. This means that the mediator will emphasise the importance of respectful communications and if either of the parties is unwilling to be in the same room as the other party, the mediator can conduct a shuttle mediation.
Good mediators balance the negotiating strengths of each person to improve the negotiation process and to minimise intimidation.
What happens in the mediation meeting?
The mediator welcomes each person and explains the mediation process. He or she asks each person to talk in turn (without interruption from the other) about their concerns.
The mediator clarifies the parties’ concerns and translates them into issues for discussion. The issues are written up and listed in order of priority. The mediator then identifies the areas where the parties are in agreement or disagreement, and provides a structure for the negotiations. Each party either directly or through their lawyer is asked to outline his or her position to the other on each issue, and together the parties explore options for resolving the points of difference. In this way an agreement is pieced together, like a jigsaw.
What if I feel uncomfortable with mediation?
You can ask to speak to the mediator alone. It is a normal part of the mediation process for the mediator to meet separately with each party on a confidential basis. You can express your concern immediately and the mediator will try to deal with it openly, or, you can ask for the mediation session to be adjourned.
What does my lawyer do at a mediation?
The role of your lawyer during a mediation differs from his or her role in representing you in Court. Your lawyer’s role in a mediation is to assist you to generate offers to put to the other party and to advise you about the offers put to you.
Your lawyer’s role includes presenting facts and evidence, exchanging legal opinion, supporting you by explaining your perspective and identifying and noting important information shared by the other party. Your lawyer will also look for weaknesses in the other party’s case and generate and record possible settlement proposals.
Your lawyer will work with the mediator to ensure that the mediator is clear about matters that can be shared with the other party and their lawyer.
Can I bring a support person?
Yes. However, when choosing a support person it is important to mindful of the reaction of the other party. You should carefully consider whether the presence of your support person will assist to resolve the dispute or otherwise. Further, your support person will usually be required to stay outside of the mediation room during joint sessions.
Are agreements reached at mediation binding at law?
Only if the parties wish them to be binding. The mediator (or their lawyers if they are present) will assist the parties to record the outcome in a ‘Heads of Agreement’ document which contains matters which have been agreed, and the issues (if any) which are still to be settled. This document can be signed as an immediately binding agreement or alternatively, to record what has been agreed in principle with the intention that the parties or their lawyers will prepare a formal agreement which will be legally binding when signed at a later time.
Julie Dobinson is an Accredited Specialist in Family Law and helps many clients through the mediation process.
DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.