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Family Law Article - Benefits of Mediation in Family Law Dispute

This article comes from the family law team at Hatzis Lawyers Brisbane

A common question asked of clients in a family law dispute is how mediation might benefit their situation. It is also common for clients to be under the misconception that mediation can replace the role of the solicitor.

Mediation is simply a process in which a third party steps in to help the participants of a dispute resolve that dispute. It is not compulsory for a mediator to have a legal background or any legal qualifications and thus a mediator's role is not to provide legal advice to either party but simply to assist the parties to reach a resolution .

This resolution may or may not be to the legal benefit of either of the parties. This is precisely why mediation is essentially a tool to reach settlement rather than the settlement itself.

This is not to say that mediation is not useful, especially in the area of family law. Generally mediation is more beneficial for clients where both parties have independent legal representation.

What this means is the parties are free to attend the mediation and attempt to resolve the issues in dispute, however, the parties are fully aware of their legal entitlements and the legal ramifications of reaching any agreement during or following a mediation.

Mediation does not replace the advice given by a solicitor to a client and mediation does not provide avenues for the preparation of documents in the event that an agreement is reached.

Furthermore, mediation and the results and discussions in mediation are made 'without prejudice'. What this means is that neither party can use the previous mediation in any Court matter if it is commenced in the Court by either party.

Mediation is also not binding on either party. The only way in which another party might be bound, once an agreement has been reached at mediation, is via legal avenues.

In short, mediation is an effective way to reach an agreement however that agreement will still need to be documented and advice given to both parties in relation to their legal entitlements and how that agreement fits within those entitlements.

There are nine phases to mediation:

  1. Recognising the problem:
    Both parties need to agree to disagree. That is that both parties need to agree to the need to resolve the matter and that there is in fact a dispute. If the parties do not agree that a dispute exists then mediation cannot occur.

  2. Choosing the arena:
    Once the parties have agreed to attempt to solve the problem the parties need to choose the arena in which they choose to settle the problem. In this case the arena would be via mediation. Even the Family Court is steering towards the avenue of mediation as an alternative avenue to litigation and in order to help families solve their dispute.
    Mediation is often a good choice due to the fact that it is non-adversarial,it is private, the costs are significantly less than Court, and it is a fast route provided that all parties are co-operative.

  3. Selecting the mediator:
    This can be done by way of the venue or the accreditation of the mediator. There are several institutions such as Relationships Australia that specialize in providing mediators and other counsellors that are trained to aid in the dispute resolution process.

  4. Gathering the data or fact-finding:
    The mediators will commence by gathering information about the nature of the dispute, the participant's views of the dispute and any other relevant information. Information is exchanged between the parties. This stage aids the participants to clarify the issues and give notice of the other parties' position on those particular issues. Often this is the first time that another party may learn what it is that the other party is seeking.

  5. Defining the problem:
    By using the shared information the mediator then assists the parties to narrow down the problems and issues in their matter.

  6. Development of options:
    The mediator will help the parties generate options for solving the problems previously defined by the parties. These options tend to be mutual, and unilateral solutions and are more easily seen as a resolution to the problem. It is common that the parties may be in dispute simply because they do not see any other option than to be in dispute with one another. Therefore developing options with the mediator is an important step in reaching a resolution in the matter.

  7. Redefining positions:
    The position or stance taken by a party may be as a result of the emotional climate throughout the matter and might not always be the actual position of that party. It is common for a party to bargain for a position rather than an actual interest in the matter, therefore creating a stalemate situation. The mediator's key role here is to assist the individuals involved to bargain for a more self-considered interest. The mediator disregards the positions introduced at the beginning of this session. This aids the participants to use the more rational process of problem solving to identify their true position and to resolve the matter further.

  8. Bargaining:
    The mediator will help the parties to negotiate over the choice of solutions to ensure that the agreement reached between the parties is acceptable to all those involved. The positions of the parties as modified options are placed on the table and exchanged and the give and take of bargaining commences. The parties can only begin to bargain and negotiate when they have: a. All the facts
    b. Mutual definition of the problem
    c. A range of options to solve the problem and
    d. One or more options as their primary goal.

    The mediator is not an active party in the bargaining role as they cannot make, accept or refuse proposals. The active parties in this phase are the individuals, the mediator simply facilitates the bargaining process.

  9. Drafting the agreement:
    The mediator will draft the MOU (Memorandum of Understanding) detailing the agreement reached and then provides a copy to each participant. This Memorandum of Understanding is not a legal document and cannot substitute a Family Court Order or other recognized agreement under the Family Law Act. This phase is where the solicitor's role becomes more apparent. Once the agreement has been reached it is now the solicitor's role to draft the agreement by way of appropriate documentation for the Court to end the financial relationship between the parties or document the parenting orders reached. This documentation provides the parties with avenue for recourse and enforcement of the orders upon the default of the agreement terms by the other party.

If you need any family law assistance in Brisbane, please email us and we can send out a family law pack to you.

Alternatively, you can call us on (07) 3345 4388 to give us an opportunity to serve you

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