Mediation is a process of dispute resolution which encourages parties to a dispute to isolate the issues, develop possible settlement options, and to negotiate a resolution which is acceptable to them. Instead of having a judge, magistrate or arbitrator impose a decision, an impartial person, the Mediator, facilitates the process and, if the dispute is resolved to the parties’ satisfaction, the mediator helps the parties to set out their resolution in the form of a written agreement called “Consent Orders” which can then become legally enforceable. In Mediation the parties never hand over the power to make decisions to anyone else, they are in charge of the decisions they make unlike Court where the judge makes the decision. The mediator cannot make or impose decisions on the parties. Settlement occurs only if the parties agree.

Although both Mediation and “without prejudice” settlement negotiations are ways of resolving legal disputes, Mediation differs from “without prejudice” settlement discussions in the following ways:

• Mediation provides a way for parties to resolve their disputes by focusing on their interests and concerns. On the other hand, “without prejudice” settlement negotiations are concerned with reaching a compromise based on legal rights and obligations.
• Mediation requires the parties to meet face-to-face rather than leaving them to communicate via their legal representatives. This allows all areas of concern to the parties to be dealt with and helps keep the problem in the control of the parties.
• Independent mediators help the parties to identify precisely what the issues are between them and encourage them to resolve these. Having an impartial person taking part in the dispute resolution process allows the parties to air their views in a non-confrontational way.

Family Law Disputes Mediation

Mediation involves a neutral person who is usually a qualified Mediator, usually a retired judge or registrar. You and your spouse can attend Mediation on your own without your lawyers, but it is not a good idea and we do not recommend it. This is simply because you may require advice on the process of achieving your goals from time to time. Mediators are neutral. They can guide you and your spouse towards an agreement, hopefully a final agreement. Mediation can often save time and money by leading to a timely resolution and avoiding the costs associated with litigation. In addition the conciliatory, Mediation process also reduces the stress and hostility caused by a contentious court process or trial. For parents, the process lays the foundation for co-operation in making important parenting decisions for their children. In property settlement, Mediation can mean facing your ex face to face for the first time in months or years and can help clear the air between parties. You may also get an apology if you are lucky as things change with time! For some people, an apology will be enough to start the healing process towards moving on from the relationship. However, we also recognise that there are times when Mediation is not suitable especially where there is high conflict and family violence. It depends on the circumstances of each case.

The easiest way to answer this question is to start by saying what a mediator does not do. The mediator does not impose a solution on the parties. The mediator cannot make any decisions for the parties. The mediator does not give legal advice (if the parties reach an agreement which the mediator considers would be unenforceable, they will advise the parties to obtain legal advice). What the mediator does is to raise settlement options to assist the parties, and to discuss these. The mediator uses their training to facilitate the parties to reach their own agreement.

Most people who litigate do not have a choice. They are either dragged into Court or forced to take the other party to Court.

You may think, “Why should I not litigate? It’s my right, after all!” Think again. Mediation is cost and time effective. Mediation is usually much less expensive than going to court because the preparation work required for a Mediation is minimal compared to going through the Court system where you are forced to pay Court fees on top of Lawyer fees.

Mediation information is privileged

Unless all parties agree, nothing which is said at or in connection with the Mediation can be repeated by the parties or the mediator in court if the Mediation fails, and no documents produced at or in preparation for the Mediation (such as correspondence between the parties concerning the Mediation, Mediation position statements, calculations or similar documents) can be used in court proceedings.

However, if the Mediation results in the parties reaching agreement, and subsequently a party wishes to take court action against another for breach of the agreement, matters dealt with in the Mediation, or which are incidental to it, may be raised in court proceedings.

Mediation provides an opportunity for the parties to preserve or resurrect their relationship 

Very often a dispute occurs between parties who have had a good working relationship until one disagreement threatens to destroy it. Because a court is an adversarial forum resulting in a “winner” and a “loser”, even a “successful” party will almost always suffer the demise of that relationship as a result of pursuing their claim. Mediation, on the other hand, is designed to minimise the disruption (both commercial and personal) to party’s relationships.

Mediation provides a means of dispute resolution which is additional to going to court 

Even if a Mediation does not result in the parties reaching a binding agreement, the process will almost always have given the parties a clearer insight into the dispute, and often makes subsequent “without prejudice” settlement negotiations easier. And if all else fails, the last resort option of going to Court is still available.

Mediation helps people resolve matters quicker than Family Court

Mediation can usually be arranged at relatively short notice. This is an advantage given significant delays in the Family Court of WA and around Australia. A dispute which may take several days to resolve in court can often be resolved more quickly because the process is not bound by the rules of evidence.

Mediation is voluntary and flexible in terms of timelines

All  parties have the right to withdraw from the Mediation at any time and can arrange to mediate within suitable times. The parties and the Mediators agree to certain rules of conduct before the Mediation to ensure that each party is given a full and fair hearing. There are no rules of evidence to restrict what is discussed in the meeting. In proceedings, parties depend on their legal representatives to put their case for them, they are bound by the complex and technical rules of court procedure and are limited by the restricted range of solutions a court can offer. In contrast, Mediation is flexible, informal and always remains within the control of the parties. A successful Mediation is because the parties have reached an agreement which satisfies them both.

Mediation is private and confidential 

Before the Mediation begins the mediator and the parties agree in writing that they will not disclose to anyone else what is discussed in the Mediation, and that no party will issue a subpoena to any other party or the mediator to produce documents or give evidence if the Mediation fails and the dispute is dealt with in court at a later stage. Court proceedings, on the other hand, are generally open to the public and the media.

You can mediate about many Family Law Matters, including the following:

• Parenting Plans
• Parenting Orders
• Issues of Parenting responsibility
• Variations to Court Orders
• Spousal Support and Maintenance
• Superannuation Splitting
• Financial Separation and settlement
• Marriage or Prenuptial Agreements
• Binding Financial Agreements of BFA’S
• Interstate or International Relocation

Marriage or prenuptial agreements protect your assets and help you and your spouse avoid litigation should your marriage or common law relationship dissolve. We can assist you and your spouse in negotiating equitable terms regarding division of property, allocation of debts, spousal support, child support, child custody. But be careful not to enter into unfair Binding Financial Agreements (BFAs) which the Court may have to set aside if there is a challenge.

You can also enter into interim Financial and parenting agreements that allow you to move on with your life without worrying about how long your divorce will take. You can do it by way of Consent Orders or BFA. BFA’s are not  for everyone. You and your spouse must be highly motivated to go your separate ways and reach an amicable solution. The agreement establishes temporary terms pertaining to child custody, child support, spousal support, property division, debt obligations and other marital separation issues.

Mediation is voluntary. If you wish to mediate and the other party does not, then Mediation cannot occur. Your only choices then may be to walk away or start court proceedings.

If you have entered into a contract which requires you to resolve your disputes by mediation then you must engage in the Mediation process once a dispute arises. You cannot start court proceedings until you have done so. Alternatively, if you refuse to participate then the other party may be entitled to start court proceedings and will let the court know that you have refused to comply with the terms of the contract requiring Mediation. If there is no requirement for Mediation then it is simply a tool that can be used if the parties all agree on their matter.  

It depends on who the Mediator is and their experience. Usually, the cost of Mediation is paid for by both parties unless there is an agreement that one of them pays the entire fee. Most mediators require funds in trust before Mediation can take place. The fee can range from $2200 to $6600 in some cases depending on length of Mediation, say half or full day. Compared to Court cases, Mediation costs are way cheaper.

There are Mediators who conduct Mediation on pro bono basis, but you may have to prove your eligibility for the service.

If Mediation is right for you, our ABMS Lawyers can develop a strategy for negotiating the best settlement possible. We also know and work with some of the best mediators in town so you will be in good hands and well looked after. Mediators do what is called “intake assessment” to get a feel of the case and to prepare clients for the task ahead. This can be quite helpful in calming anxieties and worries about the process of seeing  your ex.

As experienced Lawyers, we can assess, and tailor make your case to a specific Mediator that we think is suitable to manage your case.  This is because each Mediator handles cases differently with different strengths and weaknesses.

Arbitration means if you do not agree on things, someone will make the decision on your behalf. Arbitrators are usually senior family law lawyers. You and your spouse could submit evidence and argue your case before an experienced arbitrator. You are likely to spend less money and time on arbitration than you would in trial. In addition, arbitration can usually be scheduled much sooner than the one to three years that a typical family law case takes to reach trial. Although both processes are alternatives to litigation, they are quite different in method.

Mediation can be contrasted with the other two Alternative Dispute Resolution processes . The expertise of the third party assisting the parties is in facilitating agreement by the parties: in binding expert determination and non-binding expert evaluation the expertise of the third party will be in the area of the subject matter of the dispute for example film production or musicology. In Mediation, the expert does not evaluate or determine the dispute but focuses on the parties and their needs. Expert determination and evaluation will each result in the expert deciding or decision about the dispute which, in the case of expert determination is binding on the parties and, in the case of expert evaluation, the parties can accept or not as they choose.

If you decide to mediate your dispute, and a mediator has been chosen, the mediator will give the parties a Mediation agreement to sign. This agreement covers issues such as how confidentiality will be maintained, payment of the mediator, and a release which the parties give to the mediator in relation to taking legal action against him or her.

The parties usually will prepare brief written submissions prior to meeting. The Mediation itself typically begins with introductory remarks from the mediator, who explains the process and how it differs from other forms of dispute resolution such as arbitration and lays down ground rules for the conduct of the Mediation which the parties agree on to ensure that everyone gets a fair hearing. The mediator then facilitates discussion and resolution of the issues by the parties. The mediator guides rather than controls the process, assisting the parties in isolating the issues, developing possible solutions and negotiating a resolution acceptable to both parties. Each party has an opportunity to explain how they see the dispute. This enables the problems to be defined before settlement options are considered. A “joint session” usually follows, at which issues are identified and settlement options explored. The mediator may then consult separately (and confidentially) with the parties: this is called “caucusing”. The purpose of caucusing is to enable the mediator to understand how each party perceives their strengths, weaknesses, and particular grievances in the absence of the other parties, which may help in developing settlement options.

Should the parties come to an agreement, the mediator may assist in drafting a legally enforceable agreement reflecting the solution.