Mediations Australia

Divorce and separation are difficult times for everyone, but especially for children. Loss, grief, pain, resentment, and failure are all emotions that both spouses may feel. Courtrooms may prolong such trying moments.

This is where family law mediation comes in.

Mediation is a way of resolving conflicts between people who are at odds, usually with the help of a neutral third party. Separated families are urged to use family mediation rather than the family law courts to address child custody disputes.

People use the term “mediation” in a variety of ways. It can be as simple as seeking the support of a friend or family member to talk through the concerns at hand. A formal process employing a professional mediator can also be used.

Disputes can be between simply two people or between extended family members. When there are concerns about the safety of children, mediation may include full family group conferencing.

If a dispute cannot be settled through mediation, it may be necessary to take the case to court, where a judge will make the final decision. Going to court is a time-consuming, stressful, and costly process. The goal of family law mediation is to keep things from getting to this point.

Family Dispute Resolution (FDR) is a type of mediation that assists separating families in reaching their own agreements. Families will debate the problems in contention and examine various possibilities throughout FDR while being urged to focus on their children’s needs. An impartial and accredited Family Dispute Resolution practitioner is used in FDR.

FDR’s major goal is to help participants create a parenting plan that outlines the agreed-upon future parenting arrangements.

It is a cost-effective and practical solution for separated families to work out future parenting arrangements with professional assistance. See the Family Dispute Resolution Factsheet for further information.

Mediation allows all parties engaged in a disagreement to take control of the situation and participate actively in reaching an agreement on a resolution. Its ability to save relationships has led to it becoming a highly sought-after alternative to the legal system.

Other advantages of mediation include:

• Control
• Cost and time savings
• Confidentiality
• Flexibility
• Increased compliance
• Maintaining your relationship
• Support
• Legal enforceability without the costs

At Mediators Australia, we are pedantic about the skills and capabilities of our Mediators. Each member of our team is a licensed family lawyer with extensive expertise in practising both family law and mediation. Our mediators are all certified by the Department of the Federal Attorney-General as Family Dispute Resolution Practitioners.

If you are involved in a family dispute, talk with one of our Mediators who will answer all your questions relating to mediation and family law.

Mediation entails the use of a neutral third party to assist parties in reaching an agreement. The parties or a court can appoint a mediator. The mediator does not decide issues in the same way that an arbitrator or a court would, nor does he or she give legal advice.

A mediator supports those in a family law dispute in identifying and evaluating options, negotiating, and resolving their disagreement. Once an agreement is reached, the agreement can be drafted into Consent Orders, which are legally binding.

It goes without saying that going to court is expensive, and it is unquestionably one of the most demoralising and unpleasant experiences you will have and what makes it worse, is that it can go on for years.

If you’re involved in a family law dispute, your focus must be on resolving issues as soon as possible with the least amount of financial resources and emotional drain. Family law disputes are not about winning or losing, it’s about coming to an agreement as quickly as you can that you can live with.

In the context of dispute resolution, there are a number of methods that are used successfully to resolve family law disputes, namely, negotiation, collaborative law, mediation, and arbitration. At Mediations Australia we can assist in identifying the best resolution process based on your specific circumstance.

A former judge, barrister, or solicitor who has a thorough understanding of family law, negotiation, and the settlement process will normally serve as a mediator.

The role of the mediator is to be objective and to assist in the resolution of the dispute. This implies the mediator does not take sides, pass judgment, offer advice, or direct the parties in a particular way. The mediator will promote a conversation between the parties and encourage them to actively participate in negotiations in order to try to settle the issue during mediation.

The mediator will draw attention to the issues at hand and encourage parties to evaluate the strengths and weaknesses of their own position and that of their ex-spouse.

Mediation does not have to occur in the same room. In other words, you may be in one room, and your ex-spouse in the other, and the mediator with move between you both.

Also, many mediations these days occur via Zoom.

Mediation can be done in a variety of ways. In Australia, mediators practice within the confines of the National Accreditation Standards that Nationally Accredited Mediators.

The mediator will spell out the ground rules at the outset, such as the parties and any other participants must treat each other with respect. The mediator then asks each party to present their side of the story and express their concerns. The mediator will compile an agenda (a list) of the issues and concerns mentioned by each party and will open discussion, moving the parties towards resolution.

No matter how experienced the mediator is, sometimes an agreement cannot be reached. That said, in our experience, approximately 90% of matters before mediation are settled there. In the event that mediation does not settle the matter, mediation can help to narrow the issues that need to be litigated, resulting in cost savings. At the end of the day, the courts exist to help those who are unable to reach an agreement for whatever reason; everyone has the right to a day in court. Of course, this does not imply that a court ruling will produce the desired or even anticipated result. A court decision is sometimes seen negatively by both parties, and it is virtually always disastrous to one or both parties.

A successful mediation produces a written agreement signed by both parties, which is normally required to be documented by courts or in the form of a binding agreement. In family law, an agreement reached through mediation is not final and binding; it must be approved by a court or formalised by a financial agreement. In cases involving children, a mediator can assist the parties in drafting a parenting plan, which, while not a court order, is a document that can be presented to the Family Courts as evidence of the parents’ agreement. Always double-check that the agreement reached at the end of a mediation is satisfactory to you. If you’re not sure, ask for some time to think about it.

Parenting Matters

If you and your former partner are in dispute in relation to parenting matters, mediation is a very effective way of resolving such matters.

Prior to filing an application to a family court for parenting orders, all people who have a dispute over parenting concerns must undergo a certain sort of mediation called as Family Dispute Resolution (“FDR”), according to the Family Law Act (1975). There are a few exceptions to this rule that the Court may consider in particular circumstances.

We can provide you with detailed information on the mediation process as well as legal advice in advance of the meeting. When you participate in mediation, we will inform you of your rights and obligations under the Family Law Act and discuss a variety of possible outcomes that are unique to your situation.

Financial Matters

Financial matters, in particular, property settlement disputes are frequently resolved during mediation. If your particular financial dispute is complex, at Mediations Australia, our team can guide you through the best approach to resolve the matter without litigation. For example, increasingly complex financial disputes are being resolved very effectively through arbitration.

Simply put, mediation works because it achieves beneficial outcomes at a fraction of the cost of litigation, in a very short period of time, allowing parties to get on with their lives.

The other alternative, litigation is the far majority of cases is far from an effective and efficient way of resolving family law disputes. In fact, the research indicates that most people who litigate are ultimately very unsatisfied with the results.

Mediation allows you and your former partner to take control of the potential outcomes without deferring them to a judge who knows very little about your specific situation.

How to choose the Best Mediator

Mediation is a dispute resolution method in which a neutral third party supports the parties in reaching an amicable agreement. Mediation is significantly less expensive than regular litigation (typically one day versus years in traditional litigation). In contrast to litigation costing potentially over $150,000, mediation is less than $5,000. The market expects a mediator to give the parties the best opportunity of resolving their disagreement. So, how do you go about selecting a mediator?

Every mediation should include two crucial elements. First, a realistic assessment of the most likely outcome of the disagreement, if it is not resolved through mediation, is required. Second, the talks must continue until each party has made its best offer. The odds of a settlement are greatly lowered if these two factors do not occur.

A complete discussion of the issues, preferably in a joint session, where all parties are present and exposed to the opposing side’s point of view, is required to achieve a “realistic” judgment of the most likely conclusion. This aids in the education of the parties and provides them with a more realistic perspective on the conflict. What is learned in this forum frequently differs from what is learned after the information has been filtered through the attorneys. Furthermore, a collaborative conversation typically gives the parties a realistic grasp of the issues at hand as well as the strength of the opposing party’s viewpoint. The parties gain a better understanding of their possibilities of persuading the other side of the correctness of their own position by personally monitoring the other party’s reaction to factual and legal explanations.

Following the combined session, the mediator frequently meets with both parties in private. During the first round of private meetings, good mediators go through a number of topics in order to inform the parties about the most likely outcome if the dispute does not settle through mediation. These concerns are typically addressed to lawyers in order to ensure that the client is informed of the lawyer’s “true” perspective on the matter. The following topics are discussed:

• the case’s strengths and weaknesses;
• the most likely outcome if the case goes to trial;
• the cost of litigating the case through trial;
• the lawyer’s opinion of what the other side is willing to do;
• and, more importantly, what the lawyer is willing to recommend to settle the case.

At Mediations Australia, our mediators try to ensure that each party has a realistic appraisal of their best case scenario if the matter does not settle in mediation at the end of the first round of private discussions.

In any mediation, it is critical that discussions continue until each party’s best position is on the table. When the parties are confident that they have seen the other side’s best offer, they are more likely to reach an agreement. The mediator’s responsibility is to keep the talks continuing until they reach this point. The odds of a settlement are greatly lowered if the mediator lacks the expertise or experience to keep the negotiations continuing.

Mediators who succeed are tenacious. They have the ability to break impasses and keep discussions rolling in the face of impediments. The market wants mediators who will not give up or postpone a mediation simply because the parties are too far apart. While not every case can be resolved through mediation, studies and experience show that in the hands of a professional mediator, over 85% of cases may be resolved.

So, what qualities does a mediator need to keep negotiations moving forwards? At this stage, a quick review of mediation styles is useful. Not all mediators have the same approach. Some mediators employ an evaluative strategy, while others employ a facilitative strategy. Both are used by the best mediators. The evaluative mediator assesses the issues and makes recommendations to the parties on how to resolve the dispute.

The facilitative mediator is less likely to express an opinion, preferring instead for the parties to reach their own conclusions on how the matter should be resolved. Similarly, attempting to reach an agreement without addressing a party’s manifestly unreasonable or unrealistic expectations is unlikely to succeed. Different types of disagreements require different approaches, and both approaches may be required in the same mediation to keep the process moving ahead.

A sense of timing is essential for keeping conversations moving forwards. The correct answer given at the incorrect moment is incorrect. Negotiations that begin before both parties have a realistic evaluation of their respective cases are less likely to succeed. Specific negotiations should be postponed until the parties’ settlement expectations are realistic and their positions are within a reasonable range of one another.

Look for a mediator with a track record of successfully resolving disputes. These mediators usually have the procedure and legal expertise to ensure that the parties have a realistic assessment of the likely outcome of their case, as well as the negotiation skills to keep the parties talking. While not every conflict will be resolved, a dedicated mediator will always “go the additional mile” to find an agreement.

It is crucial to select the correct mediator for your dispute in order to get your desired outcome. The selecting process, on the other hand, can be intimidating and unpleasant. When comparing mediators, keep the following considerations in mind:

1. Education and credentials – Mediation necessitates the acquisition of specialised abilities through education and experience. Checking the mediator’s credentials is a good place to start. Look for a mediator who has been nationally accredited by a professional mediation organisation such as the Australian National Mediator Accreditation System.
2. Experience and background – It is critical that you select a mediator whose field of competence corresponds to the specific nature of your disagreement.
3. Approach – Mediators might approach a conflict in an evaluative or facilitative manner. The more active evaluative approach focuses on making legal suggestions, whereas the more popular facilitative approach is non-advisory and focuses on the needs and interests of the parties. If you’re not sure, ask a mediator what their goals are for settling conflicts.
4. Personality – A mediator’s personality can influence the outcome of a mediation. Consider the many parties involved in your issue to determine whether a firm or a soft approach is required.
5. Conflict of interest — A successful mediation relies on the presence of a non-biased and neutral mediator. Before a mediation, your mediator should check for any conflicts of interest to see if he or she can accept the appointment.
6. Costs and management – A mediator should clearly state the cost of their services and make sure that these costs are met throughout the process. While it may be tempting to choose the lowest alternative, it is critical to prioritise service quality to guarantee you get the best value for your money. A good mediator will take the time to listen and understand your needs in order to achieve the best possible result.