Frequently Asked Questions

A mediator is qualified to work with you and the other party to encourage you to explore ways to resolve your dispute. The mediator, whilst often legally qualified, does not provide legal advice or determine the outcome of your matter where parties cannot reach agreement.

Mediation

Mediation is a non-adversarial process, conducted by a neutral skilled mediator used to negotiate a dispute and hopefully reach agreement between two or more people (or organisations) to the mutual satisfaction of both parties.

Mediation provides a safe environment where the mediator assist the parties to identify and communicate their needs and interests and ensure that each party understands the other’s position. The mediator will use problem-solving techniques to find common ground, solutions and agreements to control and own the outcomes.

Mediation is a respectful way of resolving a dispute aiming to preserve relationships and minimises damage. This is critical in family disputes in particular where parties may need to continue to co-parent over a number of years.

Mediation provides greater control and flexibility over the outcome of your matter and gives you a sense of empowerment and ownership of the solution, as you can actively participate in crafting an agreement that works for your unique situation compared to other options such as court proceedings. Mediation also provides a quicker and much less expensive resolution over lengthy court processes, which can take months or years before a final hearing.

The court expects that parties involved in a legal dispute will only file proceedings as a last option. Mediation can be used before filing proceedings, at any time with or without a lawyer. Mediation may also be ordered by a court after proceedings have been filed. If litigation is on foot, the parties involved can still take part in mediation to resolve their matter.

How to arrange a mediation

Setting up a mediation usually requires the parties in dispute to engage in the following steps:

• The parties select a preferred mediator from a panel
• The mediator is approached by someone with a request to assist
• The mediator provides information about mediation, the mediator’s background, a fee agreement and request for information about the dispute.
• A time and place is arranged for the mediation to take place

As the mediation can take longer than 5.00 p.m., it is always wise to arrange for your child care, parking and travel arrangements to take this into account.

Mediation often begins with the mediator welcoming each person to the mediation and explaining the process. Both people will be asked to talk in turn (without interruption from the other) about their concerns. This may occur with both people in the same room or in separate rooms if preferred.

The mediator will identify each parties’ concerns and translates them into issues for discussion. The issues are written up and listed in order of priority and where the parties are in agreement or disagreement and provide a structure to the discussions.

Each party is asked to explain his or her position to the other on each issue, and the parties then explore options for resolving the points of difference to reach agreement on those issues in dispute.

It is preferred that mediation takes place face to face or in separate rooms. Where this is not possible a mediation can be conducted remotely by telephone, Zoom or Microsoft Teams.

The mediator generally will book the room hire for the mediation and fees are charged to the parties, at cost. This will take place in specially designed modern mediation rooms which aim to provide a relaxed environment to achieve the best outcomes.

If you are not legally represented at the mediation, you are welcome anytime to seek the advice or support of a lawyer or accountant or financial advisor to you help make some decisions. You may also have a support person at the mediation.

The mediator’s role is to try to balance the negotiating strengths of each person, to improve the negotiation process, and to minimise parties from feeling overwhelmed or intimidated so agreement can be reached freely without undue pressure or coercion.

The process of mediation can provide new approaches to resolving an intractable dispute which challenge your thinking or trigger emotions. If you have concerns or are feeling uncomfortable, it is important for you to speak with the mediator separately on a confidential basis at the commencement of the mediation or throughout the day. The mediator can deal with your concerns openly with the other party, if you are agreeable for your concerns to be shared with the other party. If you are too uncomfortable for the mediation to continue, you can ask for the mediation session to be adjourned.

To facilitate transparency and open communication, mediation is usually confidential and often undertaken on a ‘no prejudice’ basis. This means that the parties can share information to try and reach a solution, without it being used against them later if court proceedings are initiated.

The parties can agree on what will be said publicly about the mediation. Neither the mediation decisions, nor anything said at the mediation, can be used in court.

Agreements reached will be written up in Heads of Agreement or Consent orders and the parties can then take their own independent advice as to whether they will legally formalise the agreement.

Mediated agreements often contain a dispute resolution clause whereby the parties commit themselves, in the event of a breach of the agreement, to come back to mediation before initiation of court proceedings.

Mediators usually charge at an agreed hourly/daily rate for preparation, the actual meeting time, and other expenses, if any, such as room hire and/or travel. While it is usual that mediations are completed after 7 to 9 hours of work, this depends on the nature of the issues and the complexity of the issues. Usually the parties to the mediation will share the mediator’s charges unless they have a prior agreement to another arrangement and confirmed this with the mediator in the mediation and Fee Agreement Consent Form before the mediation commences.

Mediation is a fraction of the usual cost of court proceedings. A fixed fee will be charged for the initial preliminary assessment conference and fees can be tailored to suit your circumstances.

Family dispute resolution is a specific type of mediation used for family law matters such as property and parenting matters. The conference is facilitated by an accredited Family Dispute Resolution Practitioner who works with the parties to help them resolve their disputes. Before commencing court proceedings for parenting matters, and unless exceptional circumstances apply, you must participate in compulsory family dispute resolution.

Kathleen is an accredited Family Dispute Resolution Provider an can provide the parties with the certificate where required.

Even if mediation does not result in a complete resolution of your family law matter, it often helps narrow down the issues in dispute, making further negotiations (or court proceedings, if necessary) more focused and efficient. For parenting matters, if no agreement is reached, we will provide you with a section 60I certificate.

Where a child has sufficient maturity or level of understanding to be involved in the mediation process, their views can be taken into account with the approval of both parents. A child expert will meet with the parents and child separately to facilitate sharing the child’s views, wishes and recommendations to help reach a child-focused agreement.