Mediation is a form of alternative dispute resolution which practitioners and parties utilise with the aim to resolving a dispute without the need to incur the costs, stress and time delay associated with bringing a Court application. The mediation process has been so effective in assisting parties to resolve disputes, that the Federal Circuit and Family Court of Australia (“the Court”) has now made mediation a mandatory step for all parties to undertake before they are able to file an Application with the Court for both property and parenting disputes. As such, if you are involved in a family law dispute there is a strong chance that you will be attending a mediation. The below outlines what parties should expect when engaging in the mediation process.
Selecting the right mediator
Prior to actually attending mediation, parties will first need to select a mediator. A mediator is an independent third party who’s role is to facilitate the negotiations between the parties, provide suggestions for resolution and where appropriate, their professional opinion on the issues in dispute.
The usual course for selecting a mediator is for the party proposing mediation to provide a panel of three mediators for the other party to select from. Depending on whether your dispute is centered around property or parenting issues, a mediator’s professional background might be as a solicitor, barrister, social worker, psychologist or on occasion, a retired Judge. The right mediator for your matter will depend largely on the personalities of the parties, the nature of the issues in dispute and the financial resources available to the parties. It is certainly not a one size fits all approach, and your solicitor should assist you in choosing which mediator will be the best fit for your matter.
Selecting a venue
Mediations are usually held in person, however where that is not practicable many mediators will also offer to hold mediations via teleconference. If your mediation is being held in person, there are specialised mediation rooms which can be hired for the purpose of mediation and these will usually be a large space, such as an office building floor, which are then fitted out with private rooms. Many mediators also have their own offices which are fitted out to be appropriate for conducting mediations.
Prior to mediation, the mediator will usually spend some time with each party separately for an intake session. In this intake session, the mediator will explain how the day is going to run and answer any questions that the party might have about the process. Importantly, the mediator will explain during this intake session that mediation is conducted on a “without prejudice” basis – this means that all of the negotiations and offers made throughout the day are private and cannot later be used in Court.
Some mediators prefer to conduct their intake sessions prior to the mediation day, though it is most common for the parties to arrive thirty minutes apart and the mediator will take that opportunity to conduct the intake sessions.
Once intake sessions are complete, the mediator will make a judgement call on what the next best step is going to be. Often this will include having the solicitors and mediator come together to discuss any sticking points which may be able to be resolved early on, or discussions of any particular points of law.
The mediator will then begin negotiations between parties. In most cases, family law mediations will be conducted in a shuttle format, meaning that each party will sit in a break out room with their respective solicitors and the mediator will shuttle back and forth between rooms to convey the offer being made. During a shuttle mediation, it is unlikely that the parties will come face to face with each other at all, and where there is a particular concern or uncomfortability expressed by one party for that not to occur, the mediator will ensure parties are separated throughout.
Benefits of private mediation
There are many benefits to engaging in the private mediation process, whether the outcome you are seeking is to have your matter finalised once and for all or utilizing the mediation as an interim step to get all parties on the same page as to what needs to happen before a final agreement can be reached. Some of those benefits include:
- Being able to engage in real time negotiations, rather than the delay experienced with written communication;
- Conserving the costs associated with having solicitors go back and forth with lengthy written communication;
- Having an independent third party introduced can often work well to ‘reality test’ a party or act as a circuit breaker where parties have experienced protracted back and forth negotiations;
- A mediator is in a privileged position to understand what the ‘sticking points’ are for each party, and may be able to offer a solution which negates those concerns; and
- Should a final agreement be reached, where appropriate settlement documents may be able to be signed at mediation.