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What is Mediation?

Mediation is an important form of alternative dispute resolution in any civil or family law matter, and gaining popularity due to overwhelmed Court lists and significant costs with litigation. It is known that approximately 85-87% of matters proceeding through Court settle after the parties engage in alternative dispute resolution such as mediation.

Courts dealing with civil and family law disputes have a general expectation that litigants or parties involved in Court proceedings will make a genuine effort to resolve their dispute before requiring a Judge or Magistrate to decide for them. Evidence of participation and engagement with the mediation process is one of the main ways to attempt resolving your dispute and provide evidence that you have made a genuine effort.

Statistically speaking, mediation as a form of alternative dispute resolution has a high rate of successful outcomes.

At KF Lawyers Australia, our principal lawyer Katrina Favre is a Nationally Accredited Mediator with the Australian Mediation Association.

KF lawyers Australia offers mediation services for a diverse range of areas, including but not limited to the following:

  • Family Dispute Resolution.

  • Parenting Arrangements.

  • Property Settlement.

  • Spousal Maintenance.

  • Child Support or Child Maintenance.

  • Surrogacy arrangements.

  • Dissolution or Formation of Partnerships

  • Workplace and Employment Conflict.

  • Commercial Disputes.

  • Consumer Complaints.

  • Manufacturer Disputes

  • Neighbour Disputes.

  • Real Estate.

  • Landlord and Tenant Disputes.

  • Strata Disputes.

  • Contractual Disputes.

  • Wills and Estates.

  • Building and Construction Disputes.

  • Intellectual Property Disputes.

  • Class Actions.

  • Insurance Disputes.

  • Medical Disputes.

  • Environmental Disputes.

  • Insolvency.

  • Conflict resolution for proceedings in the Supreme Court of NSW, District Court of NSW, Local Court of NSW, Land and Environment Court, Children’s Court of NSW, and the NSW Civil and Administrative Tribunal.

Mediations can be conducted with a single mediator alone, or with co-mediators depending on the number of parties and complexity of the dispute.

By working in a collaborative space, we can assist parties to reach a resolution and draft the terms agreed upon to form the basis of a formal agreement such as a Deed of Release, Contract, or Consent Orders. As an experienced lawyer, our principal can prepare agreed terms in a clear and understandable format for the parties.

What is a mediator’s role?

A mediator is an impartial third party who facilitates communication between or among two or more parties in dispute.

The mediator does not take sides or make decisions for the parties. The mediator helps to create a safe environment where the parties can discuss issues in an open and respectful manner.

The mediator facilitates discussions between the parties to explore and understand the issues in dispute, develop alternative possible resolutions, make informed decisions and work toward reaching a practical and mutually satisfying outcome.

How long do mediations take?

The duration of mediation varies from dispute to dispute. Some mediations may be 2-3 hours if the issues in dispute are minimal, and others make take several days due to the complexity of the issues, numbers of parties involved, and material for consideration.

Parties are not limited to the number of mediations they may attend. In fact, it is encouraged that parties attend mediation before attending Court. Some parties may have issues that arise from time to time, and where they are unable to resolve it between themselves, engaging a mediator may be the solution.

Advantages of Mediation

Affordable – Mediation costs considerably less than litigation.

Efficient – The mediation process can usually settle a dispute within one or a few sessions. Following participation in mediation, the issues in a dispute are usually resolved and the parties reach final agreement.

Effective – Mediation statistically settles over 85% of initiated disputes.

Informal - The process of Mediation is flexible and informal, requiring little technicality for parties involved. This is one of the reasons it is also suitable for self-represented parties. It is not necessary to have a lawyer or barrister represent you during the mediation process. However, some individuals feel more comfortable having legal representation present to provide ongoing advice and assist with making informed decisions. The informality of mediations means the parties are less stressed and uncomfortable while working through issues in dispute, considering compromises and alternative resolutions.

Empowering – Disputing parties are directly engaged in the negotiation of their settlement, and essentially control the topics for discussion. The process allows for direct communication between the opposing parties, provided it is safe to do so. The mediator cannot make a decision for the parties. Where mediation results in an agreed outcome, both parties generally feel empowered, satisfied and content with the final decision.

Preserves relationships – In most instances, parties to a mediation will want to preserve their future relationship. For examples, parents may need to maintain an amicable relationship in order to co-parent their children, or business partners would need to be able to cooperate for the effective running of their business. Mediation is an effective forum to have a structured and guided dialogue which may address any hard feelings stirred by the conflict.

Confidential – Information disclosed during mediation may not be used as evidence in any trial or court proceeding, except so far as required by law or with the consent of the parties. The protection afforded by confidentiality means that both parties can speak freely about the issues in dispute and make offers of settlement without causing prejudice to their Court proceedings.

Disadvantages of Mediation

Lack of Formality – This means there are no formal rules in place to guide discussions. If you don’t engage a skilled mediator who can take control over the process to ensure all parties are equally heard, then this can result in an impasse.

Relies on cooperation and voluntary participation – If one of the participants to a mediation is not willing and able to cooperate, then the process will need to be terminated. A party cannot be compelled to participate in mediation.

Inability to reach final agreement – Some mediations may not result in final agreement due to the character of the party involved, lack of information, or complex legal arguments. Although mediation looks for practical and fair resolutions in all areas of conflict, some parties may wish to have their day in Court. This can leave the other party or parties feeling dissatisfied and cause them to incur further costs.

Mediation agreements are not binding – If an agreement is reached following mediation, the terms agreed upon are not binding unless the parties have either filed the agreed terms in Court for enforcement, or attended upon a lawyer to put the agreed terms into a contract or Deed of Settlement that lawfully binds the parties. Between reaching agreement at mediation and preparing a formal document that embodies the terms of that agreement, it is possible that all the hard work is unraveled because a party has changed their mind.

Generally, the advantages of mediation outweigh the disadvantages that parties may experience in the process. With carefully conducted intake sessions, the mediator is able to plan ahead.

What does Mediation involve?

Mediation first starts by both parties committing to participate in the alternative dispute resolution process. Often all parties will jointly select a mediator, but there are occasions where one party will appoint a mediator.

Once the mediator has been formally engaged, he or she will conduct the intake process. The intake is an individual preliminary session between the mediator and one of the parties to discuss their concerns, topics for discussion, expectations and goals at mediation. It is an important part of the process as it enables the mediator to better understand each side’s perspective and also their personalities. The mediator will also assess whether or not mediation is suitable for the parties. Assuming mediation is appropriate, the mediator will send you the confidentiality agreement for you to read, sign and return.

After the intake sessions are completed, a date will be organised for the parties to attend mediation with the mediator. In most mediations, parties are required to submit position papers or brief points to the mediator about the issues in dispute, what they say about those issues and what remedies they would like to achieve.

On the day of mediation, the mediator will help you settle into the process by introducing herself or himself, and ensuring that all parties are comfortable to proceed. The mediator will explain their role, the process ahead, ground rules for discussion, and expectations of you and the other parties.

Once the mediator has completed their introductory statement, he or she will invite one party to speak first about their concerns and the issues they would like to discuss. Each party talks directly to the mediator about these matters. This phase of the mediation process allows for each party to hear the perspective of the other without feeling confronted by the party talking directly at them.

Following each party giving their own summary, the mediator will identify some topics that were raised and develop an agenda for discussion. The topics will be confirmed with the parties. An agenda helps set the structure for discussions and attempts to assist the parties address all matters relevant to their dispute.

As each agenda item is discuss, the parties will be invited to discuss them with each other. These discussions will be guided by the mediator and he or she may interject at times to clarify what is meant and to keep the parties focused on the agenda items. During this stage, the parties are exploring each of the topics underpinning their dispute and putting forward their perspectives. The exploration phase may also lead into some generation of options for resolution.

Once each topic has been fully explored, the mediator will then engage in individual sessions with each party. Like the entire mediation process, this phase is confidential between the mediator and an individual party. The mediator can only return information to the discussion table with the other parties if the individual party consents. During the individual sessions, you will be given an opportunity to talk to the mediator about how you are feeling during the process, what you may have learned during the discussions, and also reality-test some of the options for resolution.

After each party has finished their individual sessions, they will reconvene and resume discussions. However, discussions at this point will involve some negotiations towards a final resolution. The parties eventually reach an agreement on all matters in dispute, or at least some of the matters.

If a final agreement is reached, the mediator will then draft the terms agreed upon and send these terms to the parties so they may consult a lawyer to obtain legal advice.

Types of Mediation

Mediations can be conducted in several ways, depending on the locality of the parties, safety concerns, enforcement of Apprehended Domestic Violence Orders or Intervention Orders, and health conditions.

Since the COVID-19 Pandemic, most mediations have been conducted over video or phone conference. However, some also proceed in person.

There are four ways in which parties may participate in mediation:

  1. In person;

  2. In person via shuttle conference;

  3. Through video or phone conference;

  4. Through shuttle video or phone conference.

What is Shuttle Mediation?

A shuttle type mediation is one where the parties do not speak directly to each other. Rather, the mediator speaks with the parties individually and communicates information and concerns to facilitate the discussion without either of the parties feeling confronted.

Shuttle mediations may be appropriate where there are concerns about family violence, there is a power imbalance between the parties,  or there is an AVO or other restrain prohibiting contact.

What makes a good mediator?

Mediators come from all backgrounds including law, science, and psychology. Mediators are trained and accredited through the National Mediation Accreditation Scheme and maintain their accreditation through ongoing training and learning.

The necessary skills and attributes of a good mediator include the following:

  1. Active Listening.

  2. Use of neutral language.

  3. Strong Communication.

  4. Effective facilitation of discussion.

  5. Ability to set boundaries.

  6. Identifying power imbalances.

  7. Building rapport and trust.

  8. Approachability.

  9. Patience and Dedication.

  10. Perceptiveness.

  11. Empathy.

Certificates of Attendance at Dispute Resolution

Certificates of attendance at dispute resolution are generally only required in family law matters.

Parents in a family law dispute generally require a Section 60I Certificate from a Family Dispute Resolution Practitioner before commencing proceedings for parenting orders in the Federal Circuit and Family Court of Australia.

Parties proceeding through the Federal Circuit and Family Court of Australia will generally be directed to participate in some form of mediation during the course of proceedings. Once the parties have attended mediation, the mediator will provide a Certificate of Dispute Resolution to be filed with the Court. We can prepare and filed Certificates of Dispute Resolution for parties proceeding through the Federal Circuit and Family Court of Australia.

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