Mediation is often referred to as family dispute resolution in family-related cases. It is a service provided to help the parties resolve family disputes.These disputes may include parenting disputes, financial disputes or property related disputes.
The explanatory guide of Family Law Rules 2004 provides that mediation is like a conference and counselling. It is conducted by a mediator to help the parties to understand the needs of their children, to reach agreement about arrangements for their children, to reach agreement about financial arrangements, to adjust to separation or court orders. In this process, it is best to seek legal advice from a lawyer so that you will be guided accordingly.
The aim of mediation is not principally to encourage the parties to reconcile and live together again as husband and wife. It is intended for the parties to agree regarding the differences in their claims.
According to the Federal Court of Australia website, “mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.”
There are instances that it is not necessary for you to attend mediation. These instances will render only the mediation useless, or it may only result in the aggravation of the conflict. If you have reached an agreement and already applied for a consent order, might no longer be necessary.
If the matter is urgent or if there is family violence or child abuse committed by the other party, mediation will only contribute to the harm suffered by the child or any member of the child’s family. If any of these applies to you, you may not attend mediation.
Mediation shall be conducted by a professional and trained person called the mediator. The mediator will be the one who assists and facilitates the parties to freely communicate and come to an agreement.
If the matter is relating to children, a mediator who is a trained social worker or psychologist will conduct the mediation. However, if it regards to financial matters, a deputy registrar shall conduct the mediation. A Family Dispute Resolution practitioner or the mediator should be accredited by the Attorney-General’s Department.
Mediation is one way of settling the disputes or at least narrow down the issues involve for the speedy disposition of your case. The law encourages the parties to communicate freely during the mediation so that the mediator will know what to recommend to the case.
If you want to file a family related case, especially for parenting matters, a certification from a registered family dispute resolution which states that the attempt to resolve the issue at such stage was not successful is needed.
In mediation, the mediator or even the court cannot compel the parties to settle their case or any part of it. The least that the mediator can do is to suggest to the parties the best remedy to take in order to avoid litigation or to finish the case in a speedy manner. If the mediator forced you to agree with the other party, you may validly refuse it because a settlement may come only if it is voluntarily agreed by you and the other party.
It is a basic rule in mediation that whatever communication, be it oral or documentary, made by the parties during the process of mediation should be treated as confidential. This means that the communication is not allowed to be used as evidence against the one who said it or disclosed it to a third person.
This is intended for the parties to freely communicate with the other party without fear that what has been said would be used against them. The parties would be more than willing to negotiate and voluntarily agreed if the mediation is confidential.
If the parties fears that any communication made to the mediator or to the other side may be used against them, or may be disclosed to a third party, the purpose of mediation would necessarily fail.