Mediation & ADR
5. Mediation
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 19 Aug 2015
- Mediation is a facilitative process. This means that it is up to the parties to make decisions themselves. The Mediator is independent and impartial. Their job is to assist people to identify the issues, discuss options and reach an agreement if possible. Mediators will not express an opinion or provide advice of any kind.
- Mediation is a confidential process and nothing you say within the mediation can later be used in court proceedings.
- You can attend mediation privately for a range of types of disputes.
- In family law matters you must go to a Family Dispute Resolution Practitioner (a specially trained and accredited mediator) before your case can be listed at court. There are some exceptions to this rule in urgent matters.
- In the mediation process you will have an independent and impartial mediator who will assist you to reach a resolution or an agreement.
- The Mediator will control the process and assist parties to:
- clearly identify the issues;
- explore options and generate solutions; and
- reach and draft an agreement.
- Throughout the process the mediator will enable the parties to discuss the issues and the different outcomes that are being explored in a respectful manner. At no time will the mediator provide any advice or opinion about either the issues or the proposed solutions although they may provide you with relevant general information.
- You can have a lawyer attend the mediation with you. Remember their role will be minimal during the process. They are mainly there as an advisor for you and to assist you at the agreement drafting phase.
- The goal of mediation is to empower the parties to reach an agreement that suits their situation. If an agreement is reached the mediator will record it. This is often done on a whiteboard or large pieces of paper. Following the mediation the mediator will usually type up the agreement and send a copy to each party.
- Mediated agreements are effectively based on goodwill.
- If both parties freely sign the agreement then it is technically a contractual agreement. However the confidentiality of the mediation can make the mediated agreement difficult to enforce under contract law.
- There may be a term in your mediation agreement that allows the confidentiality of the mediation to be waived for the purposes of enforcing the agreement.
- Alternatively the normal solution is for one or both parties to take the mediated agreement to their solicitor and have it made into a deed of agreement.
- It may be advisable for both parties to get independent legal advice at this stage to confirm that they understand the effect of the agreement and the rights and responsibilities they are agreeing to.
- If any problems arise at this stage they may be negotiated between the lawyers or the parties may return to mediation to fine tune the agreement.
- Even if you need to return to mediation this solution will still be cheaper and faster than going to court.
- There is a national accreditation system that regulates mediation. You can access the standards from the Mediator Standards Board: http://www.msb.org.au.
- There are ‘Australian National Mediation Standards’ and ‘Attorney-General Family Dispute Resolution Practitioner Standards’.
- Each state and territory can also make their own laws regarding regulation and accreditation of mediators and so you will need to check what the rules are where you live.
- It is important to remember that there are very specific rules that apply to family dispute resolution which is mediation in the context of family law.
- Your mediator must be an Accredited Family Dispute Resolution Practitioner (FDRP).
- This is important as they must be authorised to issue a special certificate in accordance with the law. This certificate will state that you have made a genuine effort to participate in mediation or that your matter was assessed as unsuitable for mediation. If they are not able to issue this certificate then you will not be able to prove to the court that you have attended mediation and will not be able to proceed to trial.
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