There are a variety of terms used in the area of alternative dispute resolution (usually referred to these days as just ‘dispute resolution’) and at times, they can be confusing.
Two of the most common terms are mediation and conciliation. Both are common processes used in family law mediation. Both share many features but also have some key differences, which we’ll outline below.
What is Mediation?
In its most basic form, mediation is an informal discussion between a minimum of two people to air issues, create solutions and examine options to resolve a disagreement or dispute. In family law mediation, this may be to discuss living arrangements for children, who is going to pay for what, and how property is to be split up. The process is conducted by a mediator, a trained professional who is impartial and neutral. The mediator provides the framework for the discussion and facilitates the circumstances to move it forward so that each party can understand the other’s point of view.
Unlike conciliation, the mediator’s key role is to empower the parties in dispute to understand the issues between them and come up with their own way to resolve the disagreement so as to avoid the need for court action. In family law mediation, the mediator consciously avoids offering suggestions or recommendations to either of the ex-partners about ways to resolve the dispute. Instead, they offer general guidance to the parties as a way of helping them find their own solution to the problem.
When agreement can’t be reached through mediation, a dispute will often move to a stage where a third party such as a judge will need to impose a decision that binds both parties.
What is Conciliation?
Conciliation shares some features of mediation in that it is a more informal, more affordable and more efficient process than going to court. Like mediation, a qualified and neutral professional also facilitates negotiations between those in dispute to help them achieve a resolution.
Compared with mediation, however, the conciliator takes a more interventionist role. The conciliator may be asked to express an opinion on the best way for the dispute to be resolved and suggest the terms of a negotiated settlement. The parties may also ask the conciliator to make a non-binding recommendation or finding on the dispute, based on both the facts and legal issues at the heart of the disagreement. This may or may not be because the parties in dispute have been unable to reach an agreement.
The conciliator will make recommendations to the parties jointly for their consideration. This process generally happens after the conciliator has met separately with the parties to try and resolve the dispute, interpreting factual and legal issues, offering advice and suggesting possible solutions.
Conciliation is designed to bring about reconciliation and resolution between those in a family law dispute, often by encouraging each party to make concessions and compromises, but it should be noted the result is not legally binding on either party.
Working out whether mediation or conciliation is best for your particular family law dispute is best achieved by consulting one of our Sydney mediation team at Mediations Australia. We can discuss the benefits of each process so that both you and your ex-partner feel confident in committing to a method that will help you both achieve a resolution of your family law issue.