Going to Court is costly and without doubt one of the
most demoralising and stressful events you will encounter. There is an alternative, in fact more than
one alternative but in general they all come under the heading of dispute
resolution (also known as alternative dispute resolution and if under the
Family Law Act 1975 then defined as being family dispute resolution). These methods include negotiation,
collaborative law and mediation. This
article focuses on mediation.
You can make life easier by engaging in mediation. A mediator is essentially a neutral party who
assists you in the negotiation process by meeting with both of you, identifying
the issues and then addressing those issues and reaching an agreement. It’s not a process that will take months but
often hours, either on the one day or a number of days. The participants need to have patience to
watch the process build to an agreeable outcome. I will discuss the process, how the process
of mediation works, how outcomes are achieved by the mediator (well not
everything a mediator does but an idea of the process), and finally the
advantages and disadvantages of the process.
Mediation – a
short and simple description
Mediators are different to judges.
·
A Judge’s role is to make a decision and impose that
decision on the parties, based upon legislation and legal precedent upon whether
they like it or not.
·
A mediator does not make decisions but helps the parties
solve the problem for themselves.
Many a time participants in mediations I have conducted
didn’t think they had any hope of reaching an agreement. One actually said “He will get…… over my dead
body.” She didn’t die and they were able
to reach an agreement much to her surprise.
I have conducted many hundreds of mediations. For me the big picture is that mediation
helps the participants to reach a decision based upon self-determination. That is, both of them have made compromises
on their original positions to arrive at a mutually agreeable outcome. Without compromise there will be no outcome.
Quite often the willingness to compromise will not be evident at the commencement
of the mediation but will eventuate during the process. This happens because there are benefits to be
gained by both parties by negotiating and compromising positions. A compromised outcome created by the parties can
result in benefits to both that would never have been realised had a judge
decided the matter.
Mediation is also about generation of options, usually
arising from the parties but at times being suggested by the mediator or the
professionals (lawyers) assisting the parties if they are present.
The Mediation
Process
Mediation can be conducted in many ways. I have been trained in a facilitative
(problem solving) style but as most mediators would agree, the style of the
mediator is adapted to meet the circumstances and the needs of the parties but
within the bounds of the National Accreditation Standards that Nationally
Accredited Mediators must abide by.
At the commencement the mediator will lay down the ground
rules, for example that the parties and any other participants must show
respect to all involved. The mediator
then seeks to have each of the parties tell their story and to point out their
concerns. The mediator will eventually
put together an agenda (a list) of those issues and concerns that each party
has raised and set out discussing each point with a view to reaching agreement.
Sometimes an agreement cannot be reached, no matter how
experienced the mediator is. However, it
is rare that there is not at least some agreement reached on some of the
issues. Mediation can narrow the issues
which need to be litigated therefore saving costs. At the end of the day the Courts are there
for people who are unable to agree for whatever reason; everyone is entitled to
their day in Court. Of course that doesn’t
mean a court decision is one that will result in the outcome the parties want or
even envisaged. Sometimes a court
outcome is seen by both parties as a bad outcome, and almost always devastating
for one party.
A successful mediation results in an agreement in
writing, signed by both parties which is usually required to be documented by
courts or by way of a binding agreement.
In family law an outcome at mediation by way of agreement cannot be
final and binding, it must be later approved by a court or documented by way of
a financial agreement. In children’s
issues a mediator can help the parties draft a parenting plan, which although
not a court order, is a document which can be later produced to the Family
Courts as evidence of the agreement between the parents. You should always make sure that you are
content with the agreement reached at the conclusion of a mediation. If you are unsure you should ask to have time
to think about it.
Well, in my view, no.
There are positives but few, if any, negatives. When mediation works it results in a quick,
and comparatively (to litigation) cheap outcome. The parties can move on knowing that they have
resolved the issues without having to worry about the future outcomes of
litigation. In fact, a great deal of
relief can be observed on the faces of parties in a mediation. Not because they had a good outcome but
because the distress and uncertainty of the conflict is finally over. To me, that’s what I offer, an end to the
conflict that quite often has completely consumed the parties up until the
moment of settlement. Not to mention that the parties have literally saved
themselves anywhere from $20,000 to $100,000, or more, in legal costs each!
Mediation creates lasting solutions because the parties
have created and agreed to the outcome and this helps heal the rifts between
the parties. A decision imposed by a
court or through arbitration is less likely to be adhered to and certainly does not assist the parties to build on their relationship and communicate in the future.
Of course there are negatives to a failed mediation. You have lost time and money and sometimes
the weaknesses and strengths of each party’s arguments are more exposed. Having said that, it would not be sensible to
bypass mediation and proceed to a court based determination which is going to
continue the dispute, create more problems for the future, and of course cost
many thousands of dollars. Someone
generally “loses” in court and in mediation their can only be “win - win” outcomes.
Mediators mediate because they know it works. They know
it is a rewarding and worthwhile pursuit.
Mediators are peace makers and have a sincere desire to help others
reach their own peace.
I am passionate about the virtues of mediation and I hope
I have encouraged you, the reader, to at least give it a go. You really have nothing to lose, but much to
gain.
Randal Binnie
Nationally Accredited Mediator & Family Dispute Resolution Practitioner
Mediate Resolve
