• What is mediation?

What is mediation?

Mediation as a means of family dispute resolution is growing in popularity both among family law professionals and the general public. It is no longer confused with mediation or levitation and family law practitioners are obliged by law to tell their clients about it and its availability.

A simple definition is ‘assisted negotiation’ but that is only the beginning and does not help to explain the process properly.

Mediation as a form of dispute resolution has a long history. It comes in many forms and there are multiple definitions. The Law Council of Australia in its publication Ethical guidelines for Mediators describes the process as:

‘. . .  a process in which an impartial person - a mediator -facilitates the resolution of a dispute by promoting uncoerced agreement by the parties to the dispute. A mediator     facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem solving techniques to enable the parties  to reach their own agreement.
A mediator should explore with the parties prior to the mediation commencing that each party will have the necessary authority to conclude any settlement.’

Why mediate?

Mediation offers an informal means of resolving disputes, without the need for preparation of expensive documents and without the need for attendance at court events.

Mediations take place at a time and location to suit the parties and the mediator.

Mediation offers an opportunity for parties to tailor the resolution of their dispute to suit their circumstances.

Mediation is private.

Mediation usually costs much less for a family than litigation with the result that more of the family’s property is available to the parties and their children.

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Ethical Guidelines for Mediators Law Council of Australia February 2006 para 1.

What happens at mediation?

Every mediator has a unique model but common features include:

• Joint sessions that provide an opportunity for the parties or their representatives to set out their position to the other party or representative;
• Private sessions with the mediator to discuss possible outcomes to meet each parties particular concerns;
• Joint sessions to discuss preferred outcomes; and
• Recording of agreements reached.

Mediators almost without exception require each party to a mediation to agree that everything said at the mediation is confidential and may not be used in any subsequent court proceeding.

Mediators are aware of the need to preserve safety for parties and to ensure that each party is able to negotiate on a level playing field. Mediators are trained to recognise power imbalances between parties and to take steps to counter them.

Who are the mediators?

In Australia mediators are increasingly specifically trained professionals. This web site provides details of Institute members who have undergone specialist training, often conducted by either a professional body or a university. Most of the mediators listed are also experienced family lawyers but increasingly professionals from other disciplines with experience in assisting families in dispute are undergoing mediation training.

Click here to find a mediator.

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