What You Need to Know About Mediation
“The family law system in Australia is groaning under the weight of a vast backlog of more than 20,000 cases and families are waiting up to five years for bitter child custody and property disputes to be resolved.”
Sydney Morning Herald, 18 August 2018
There are much better ways to resolve conflict than through the courts. This premise is accepted by every court in Australia with many of them through associated legislation requiring that every dispute go through a series of mediation steps before reaching the court.
There are many reasons why mediation is a significantly better option than litigation (going to court).
The Benefits of Mediation
There are many benefits to mediation. Here are the most common.
Better Control of Outcome
Courts are for want of a better term, “sausage factories.” They are geared to get through a huge workload as quickly as possible. Consequently, the judicial officer who will ultimately decide your matter knows very little about it. Your matter has been distilled down into the very basics and this is largely the information that will be considered. Most people who come out the other end of litigation are very disappointed in the outcome and often point to their view that the Judge or Registrar didn’t properly understand or consider the full circumstances of the matter.
Conversely, when you choose mediation, you and the person or organisation that you’re in dispute with have far more control of the outcome because you’re driving it. Notwithstanding this, and very importantly, mediation usually occurs early in the dispute which means the parties involved in the dispute have a clearer sense of what they want, as opposed to being years down the path of litigation where you may not be able to see the forest for the trees.
Put bluntly, if you want a better outcome to your dispute, choose mediation.
You Don’t Waste Money on Legal Costs
Lawyers, regardless of the type of dispute you’re involved, charge in the vicinity of $400 – $700 per hour. It doesn’t take much brain power to conclude that your dispute, just in legal fees, will cost you a substantial amount of money. Notwithstanding the fact that there are of course other fees associations with litigation, including court fees, barristers fees (who likely are to be involved) and any other experts required (psychologists, independent children’s lawyers etc). The average family law dispute costs upwards of $150,000 to resolve through litigation and will take approximately 3 years. Conversely, mediation will cost each party in the vicinity of $1,500 each and will likely be resolved in days.
You Get to Get Back to Your Life Sooner
There has been loads of research done on the impact of litigation on not only those directly involved, but all those that have a relationship to those involved (children, parents, friends and family). It is an horrendous experience and it gets worse over time. Litigation is plagued by many unknowns, is highly emotional, hugely expensive and will rent your head for long periods of time, likely years.
Mediation on the other hand is cost effective and will allow your matter to be resolved quickly so you and others can get back to your life sooner.
What is Mediation?
Put simply, mediation is a process that brings people in dispute together for a set period of time to focus on the real issues that are causing the dispute and resolve them through the assistance of a third-party facilitator.
Mediation can occur in person or via video-conference and does not necessarily mean that the people in dispute need to see or hear each other. In high-conflict matters, the mediator will adopt a “shuttle” approach where he or she will move between those in dispute to facilitate an outcome.
What types of matters can benefit from Mediation?
Mediation is a widely used dispute resolution practice used in all disputes. At Mediations Australia, we typically assist in:
- Family law disputes
- Estate and Will disputes
- Business disputes
- Employment law disputes
- Compensation disputes
There are of course many other types of disputes that we can assist you resolve at Mediations Australia.
What is Required from People Who choose Mediation.
Very little, other than a willingness to resolve the dispute and a clear understanding of the matters causing the dispute and of course, what their ideal outcome would be if the matter resolves during mediation.
At Mediations Australia, the first step is for you to talk with one of our mediators for a free, initial consultation. In this consultation you will be able to ask as many questions as you like about the process. Our mediator will also talk with others involved in the dispute once they have agreed to participate as well. This helps the mediator get a very good idea of the matter.
What Does a Mediator Do?
The mediator, in many cases who is a qualified lawyer, is interested in one thing only, that is to facilitate an agreement between those involved in the dispute.
A mediator does not take sides. They’re completely independent and impartial. At Mediations Australia, our mediators have had many years’ experience in resolving even the most complex matters through mediation.
Practically speaking, the mediator works between those involved in the dispute, working the dispute towards resolution.
How Long Does a Mediation Take?
Mediation usually only take 1 day. Some people considering mediation can make the mistake of thinking that their dispute is very complex and could not possibly be resolved in one day. This is not typically the case. Very complex matters can be resolved in a day through the facilitation skills of highly-experienced mediators.
Notwithstanding this is that one of the key benefits of mediation is that it brings with it a sense of urgency and focus on the important matters. It’s probably akin to thinking about a job you need to do that will take a week if you gave it that much time, or could be done within one day with the intensity of focus.
What is the Cost of Mediation?
At Mediations Australia, a one day mediation will cost approximately $3,000. This includes preliminary discussions with those involved.
Is the Agreement from Mediation Binding?
Any agreement reached in a mediation can be subject to court orders to ensure it is legally binding. For example, in the context of family law disputes, once the mediation has resulted in an agreement, we can have that agreement drafted as consent orders for an additional fee of approximately $3,500 including court fees.
What Happens if Mediation Does Not Work
Mediation works for approximately 80% of all disputes. But if your mediation does not result in mediation that does not mean that at some later point it cannot be tried again. Sometimes people unfortunately need to experience the process of litigation to better appreciate mediation as a easier, significantly cheaper way of resolving the matters in dispute.
I’m Not Sure if Mediation Will Work for Us?
Some people hesitate considering mediation because they think their dispute is too unique or too complex. At Mediations Australia, our mediators have resolved highly contentious and complex disputes. We can easily assess whether or not your matter is suited to mediation through a free, initial consultation with one of our mediators.
The Other Party in the Dispute Does Not Want to Do Mediation. Can They Be Persuaded?
It’s not unusual for one party to the dispute to be unwilling to be involved in mediation. Unfortunately for them, they’re unaware that it’s likely they will be forced to participate in court-ordered mediation at various steps during litigation. Courts obviously form a very negative view of those parties who are not willing to participate in mediation.
At Mediations Australia, we offer a free, initial consultation. It’s perfect for you to voice your concerns about the unwillingness or hesitation of the other party involved in the dispute. There are many times where people who are reluctant to participate, following a conversation with one of our mediators become willing to be involved.
I Want to Mediate, How Do I Make it Happen?
Simple. You just contact us at Mediations Australia for a free, initial consultation with one of our mediators and you will be guided through the process.
I Have a Lawyer, But I Still Want to Mediate?
Having a lawyer already involved in your dispute does not bar you from choosing mediation as an alternative. You must remember that your dispute is “your” dispute and not your lawyers. Lawyers are instructed by their clients not the other way round. Sure, they can offer their advice, but if you want your matter to progress to mediation than instruct your lawyer to initiate the steps to do so. Alternatively, talk with one of our mediators who may be able to give you some useful advice on how to do this.
What is the Role of a Lawyer in Mediation?
As mediation is a compulsory step in most litigation, lawyers are involved. A lawyer’s role in mediation is to assist their clients become prepared for the mediation and offer practical and legal advice on the process and any issues that may derive from the mediation.
A lawyer’s role in a mediation depends largely on the complexity of the dispute. Their role may extend to representing their client in the mediation and taking care of all communications on behalf of the client.
Following mediation, the lawyer may be involved in the drafting of the agreement into consent orders, which is a legal binding agreement between the parties.
Is it Better to Have a Lawyer Involved in Mediation?
Not necessarily. If you are already involved in litigation than its likely your mediation will involve your lawyer. But if you have not embarked on litigation, than it’s likely you will not require a lawyer. However, in your free, initial consultation with one of the mediators at Mediations Australia, they will be able to advise you whether or not your matter or circumstance is better suited to having legal representation.
Do I Need a Mediator?
Resolving a dispute without an impartial, third-party can be very difficult. If you choose not to have a mediator and try and do it yourself, it’s likely the dispute will become a yelling match and you will move further from agreement than closer to it. At Mediations Australia, most of our mediators are qualified lawyers and have extensive skills, expertise and experience in negotiation. These are very important assets that a mediator brings to a dispute.
Are There Alternatives to Mediation?
Yes, there are alternatives to mediation, rather than litigation. One such alternative is arbitration. Arbitration is akin to a judicial or court process in which an arbitrator, typically a lawyer, who acts as a Judicial Officer or Judge in the matter. The parties to the dispute usually are represented by a lawyer and provide all the documents necessary to best prepare the arbitrator to determine the outcome of the dispute.
Arbitration is usually chosen in matters that are highly complex, but where the parties do not want to unnecessarily spend years in dispute accumulating significant legal fees.
What are the costs of Arbitration?
Notwithstanding the legal fees associated with your lawyer, arbitration is usually upwards of $10,000, again depending upon the complexity of the dispute.
What is best for me? Arbitration or Mediation?
You may think your matter is highly-contentious and complex to resolve, but it may not necessarily be the case. Often we can over-complicate the smallest of things which prevents us from seeking help.
If you’re considering what is best for you, we recommend that you talk with one of our mediators. It’s not going to cost you a cent for an initial consultation and the mediator will be able to professionally advise you of what they consider are your best options.
In relation to family law mediation, will the Mediator give me a s60I Certificate?
Yes we can give you a s60I Certificate.
If Mediation Fails Can I Go to Court?
If your mediation fails, you do not lose the right to go court or try other dispute resolution methods. In the unlikely event that your mediation fails, our mediator will provide you with advice as to what your next steps could be. These steps may include arbitration, litigation or trying mediation at some point in the future.
At What Point in Time Should I Consider Mediation?
Mediation can be done at any point in time during the dispute and as mentioned earlier, will likely be required during the course of litigation.
Some people choose to resolve their dispute quickly through mediation to minimise the risk of the dispute becoming worse over time. This makes very good sense as typically, disputes not resolved promptly have a tendency to become far more complex and emotional as time goes on. Notwithstanding this, often when a dispute involves lawyers, the adversarial nature of the law takes over and positions each party in their respective corners. Once there, it can be difficult to change position.
That said, many mediations do occur through the strong encouragement of their lawyers who acknowledge that the dispute would be far better served through mediation than litigation. It’s not unusual in this circumstance that people in dispute need to experience litigation to better appreciate the benefits of mediation. For example, 3 months of litigation may cost in the vicinity of $30,000 and that in of itself can act as a catalyst to get the warring parties to resolve through mediation.
What is Private Mediation?
Private mediation is just another term for “mediation.” All mediation is private and confidential and nothing discussed during mediation is legally binding until such time as an agreement is reached and is then drafted as a legally binding document.
Are there Free Mediation Options?
Yes there are.
Should I Choose a Free Mediation Service or a Paid One?
Many free mediation services are often limited by capacity. In other words, it may take a long period of time to have a mediation. Notwithstanding this, free mediation services may not have mediators that have the degree of expertise and experience that your dispute requires.
What About Online Mediation?
There has been a rise in online mediation in which you and those you’re in dispute with can work independently online to try and resolve the matter yourselves. We’re yet to see these types of solutions be successful in most disputes. They may work for small debt matters, but again, we’re yet to see their success.
What Training Do Mediations Australia Mediators Have?
At Mediations Australia, nearly all our mediators are lawyers and/or barristers with both strong expertise and experience in resolving disputes. Those who do not have legal qualifications are typically mediators that are perfect for relatively simple disputes. We determine which mediator is best for you following the initial free, consultation with one of our mediators.
Australia Can Help
We Assess Your Dispute for Free
At Mediations Australia, we offer a free, initial, no-obligation consultation with one of our Accredited Mediators.
We Will Coordinate the Mediation
No need to worry about contacting the other party to your dispute. We’ll do that all for you.
Fixed Fee Mediation
You will know at the outset exactly what the mediation fees will be. In other words, unlike litigation, you’ll get no surprise legal bills in the mail.
Get help from our Mediations Australia