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The Mediation Process: How It Works and Why It Matters

Written by Leanne Abela

What is mediation?

Mediation involves parties in a dispute engaging the services of a neutral and independent third party (a mediator) who facilitates communication, discussion and negotiations between the parties in a dispute with the aim of an agreement being reached.

How does mediation work?

The parties engage a mediator usually at their shared expense.  A date, time and place are agreed upon for the mediation which can take several hours and often up to a whole day and, on some occasions, over several different dates.  Some parties engage in more than one mediation process.  Initially, the mediator, with the parties, work out an agenda to identify the issues in dispute and then work out a process to narrow the issues in dispute to facilitate discussions and negotiations.  There can be an exchange of relevant financial documents and obtaining of valuations of assets and the like.

Is mediation compulsory?

Mediation can take place either before the parties engage in the legal process or during the legal process itself.  In parenting matters, most cases are required to engage in mediation before Court proceedings can be commenced.  Some cases are exempted if there are allegations of family violence, urgency or some other reason for an exemption.  In all matters including parenting and property, parties are required to make a genuine effort to resolve the dispute before commencing Court proceedings.  During Court proceedings, especially in relation to property matters, the Court will require the parties to engage in mediation usually privately but sometimes through the Court system itself.

What does mediation cost?

Mediation can take various forms and a variety of different processes.  The cost will depend upon how mediation is conducted, where it is conducted and by whom.  There are many accredited mediators including most barristers practicing in the family law area.  There are also other organisations such as Relationships Australia and other family dispute resolution centers scattered throughout cities and regional areas.  You should ensure that you have input in the selection of a mediator and that they are trained, accredited and experienced in mediation.

Who attends mediation? 

Sometimes parties alone attend mediation with the mediator.  More often than not, particularly in complex parenting or property cases before the Court, mediations are conducted by a barrister specialising in the family law field and the parties are represented by their lawyer and/or barrister.  If there are safety concerns, mediation can be undertaken with special measures put in place to ensure that everybody feels comfortable and safe throughout the process.

What sort of disputes can be mediated?

Almost any issue in dispute can be mediated.  Issues would include parenting matters, property settlement and child support.  The parties themselves, with the assistance of the mediator, decide what issues are in dispute and which require the assistance of the mediator to explore resolution.

Is mediation beneficial?

Mediation is a very effective tool to enable genuine discussions and negotiations to take place.  It can narrow the issues in dispute even if they cannot be resolved entirely.  Most mediations save the parties time, inconvenience, stress and money.

How do I organise mediation?

If you have a lawyer specializing in family law, talk to them about engaging a qualified and experienced mediator to discuss the options available including costs.  If you do not have a lawyer then you can make enquiries of local mediation services but ensure that they have the proper qualifications and expertise to assist you in dissolving your dispute.

Pearsons Lawyers

Our team of specialist family lawyers can provide timely and accurate advice on all matters that need to be dealt with following a separation including parenting and property matters.  To arrange your free initial consultation contact Pearsons Lawyers today on 1300 699 688 and “know where you stand”.

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