Mediation is a guided negotiation process where an independent, neutral person assists people involved in a conflict (or dispute) to first identify their concerns, then communicate with each other to explore those concerns and negotiate solutions. People are encouraged to find ways to address their needs, rather than dwell on who is right or wrong. Using facilitation and technical skills the mediator assists people to reach the best possible joint decisions that their situation allows.
Mediation is almost always quicker, cheaper and easier than sorting out a dispute in the courts. The people involved retain control of their own concerns, rather than handing them over to legal experts who often have very different perspectives regarding how to deal with the issues. The range of solutions possible when a person retains control of their own dispute is usually greater than the limited remedies available in courts. After a court or arbitrated decision people have no choice but to accept the judgment made even though neither of them may be happy with it. In mediation this uncertainty and dissatisfaction can be avoided.
Mediation has a high success rate with around 70-80% of mediated disputes resulting in agreements. Even where mediation only results in partial agreements and the people still need to have some issues to be resolved through a different process, such as the court, there will be less time and cost involved due to some issues having already been agreed upon. Following mediation people are also more likely to be able to get on with the other person as mediation tends to ‘build bridges’. Court proceedings tend to create greater adversity and therefore a continued relationship is unlikely to be possible.
Family Dispute Resolution is a specialist mediation process designed specifically to support families to deal with relationship disputes. As a form of mediation it is more flexible, less adversarial and cheaper than litigation. It gives separating families the opportunity to come up with the best solutions for their own circumstances rather than have decisions made for them by the Family Court.
In Family Dispute Resolution the best interests of the child or children are considered to be paramount and the Family Dispute Practitioner focuses on the welfare of the child or children as a priority. The law requires separating families who have a dispute about parenting arrangements to make a genuine effort to resolve that dispute by using Family Dispute Resolution before they can apply to a court for orders. It is also used to sort out arrangements relating to separating property, spousal maintenance and other family separation issues.
Divorce and separation are painful and stressful for families. Children are particularly vulnerable. In comparison to court, Family Dispute Resolution has been found to reduce the time it takes couples to separate, as well as the emotional pain and the costs of separation.
Mediation always starts with each person having an individual meeting with the mediator prior to the joint mediation sessions. After that they have usually joint mediation meetings. Mediation can be completed quickly in one session or require several sessions over a period of months. This depends on the number of issues to resolve, the complexity of those issues, how quickly they are able to obtain the information needed and on their ability to look to the future, communicate and negotiate.
In mediation each person should think of their future, rather than dwell on the past. They should primarily pay attention to their own interests but be mindful of the other person’s interests as well. The mediator may assist both people to come up with some creative, workable solutions that neither of them had thought of previously. Successful mediation involves negotiation and compromises. Neither person may get all the outcomes they want: each may choose to set aside minor preferences in order to achieve the important things that really matter to them.
What qualifications should a mediator have?
All practicing mediators have received mediator training and passed exams that admit them to membership of a Recognised Mediator Accreditation Body (RMAB). All RMABs are members of a peak body, the National Alternative Dispute Resolution Advisory Council (NADRAC) funded through the Australian Government Attorney-General’s Department.
All accredited mediators recognise, and should adhere to, professional Mediator Practice Standards, which are available via the Mediator Standards Board website at http://www.msb.org.au/ .
Family Dispute Resolution Practitioners are mediators who work with separating families or families experiencing disputes. They are required to undertake additional study and training related to their role with families and have additional accreditation and other requirements, specified in the Family Law Act (1975).
If you would like to learn more about Family Court Mediation or would like to make an appointment please contact us.