What is mediation?
Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator:
communicate with each other, exchange information and seek understanding
identify, clarify and explore interests, issues and underlying needs
consider their alternatives
generate and evaluate options
negotiate with each other, and
reach and make their own decisions.
A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes.
Mediation is different from Family Dispute Resolution (FDR), which is a compulsory form of conflict resolution for parenting matters prescribed by the Family Law Act 1975 (Act). Mediators cannot issue certificates under section 60I of the Act to enable a person to make an application to the court in relation to children.
What is a Nationally Accredited Mediator?
Nationally Accredited Mediators have met minimum standards of training and assessment and are required to comply with the Approval and Practice Standards which are part of the National Mediator Accreditation System (NMAS). They the knowledge, skills and ethical principles set out in the NMAS standards to assist participants to make their own decisions in relation to disputes, conflicts or differences among them.
What is the National Mediator Accreditation System (NMAS)?
The NMAS is a voluntary industry system under which organisations qualify as Recognised Mediator Accreditation Bodies (RMABs) that may accredit mediators.
Is mediation compulsory?
Mediation is voluntary unless it is court-ordered or prescribed by legislation.
When can voluntary mediation take place?
Mediation can be undertaken:
before proceedings have been commenced in an endeavour to avoid proceedings
during the litigation process in an endeavour to settle the proceedings or to narrow the issues in dispute
where the parties do not require a section 60I certificate because:
a certificate has been issued previously, or
the matter relates to financial matters only
When is mediation not recommended?
If you wish to mediate parenting matters before proceedings have been commenced, we recommend that you undertake FDR instead. You can only apply to a family law court for a parenting order when you have a certificate from an accredited FDR practitioner which states you have made a genuine effort to resolve your dispute. A certificate is not necessary if you are applying to a family law court for a financial order only.
Who can attend mediation?
The people having the disagreement need to be involved in the mediation process.
Each party can bring their family lawyer with them to observe and provide legal advice during the process.
A support person or an adult family member can attend with you but, unless considered appropriate by the mediator and agreed by all parties, they cannot be present in the main mediation room. The role of the support person is not to actively take part in the mediation but to support you during the mediation. The support person will not usually be allowed to speak during the mediation.
What happens during the mediation process?
Before mediation can begin, your mediator is required to undertake a separate pre-mediation interview with each participant and ensure that they are provided with:
a description of mediation and the steps involved including the use of joint sessions, separate sessions and shuttle negotiations
information on how to provide feedback or lodge a formal complaint in relation to the mediator
The pre-mediation interview takes place prior to the day of the mediation and includes:
assessing whether mediation is suitable and whether variations are required (for example, using an interpreter or a co-mediation model in culturally and linguistically diverse communities or introducing safeguards where violence is an issue)
explaining to participants the nature and content of any agreement or requirement to enter into mediation including confidentiality, costs and how they are to be paid
identifying who is participating in the mediation and to what extent participants have authority to make decisions
advising participants about the NMAS and how it can be accessed
assisting participants to prepare for the mediation meeting including consideration of any advice or information that may need to be sought and/or exchanged
referring participants, where appropriate, to other sources of information, advice or support that may assist them
informing participants about their roles and those of advisors, support persons, interpreters and any other attendees
advising participants about how they or the mediator can suspend or terminate the mediation
confirming each participant’s agreement to continue in the mediation
deciding venue, timing and other practical issues
The mediation will ordinarily include a joint session of the participants in which the participants communicate directly with each other to identify, clarify and explore interests, issues and underlying needs. The mediation may also include separate sessions and shuttle negotiations.
The mediator will:
control the process
create an environment where parties have a chance to hear and listen to each other in a respectful manner
help keep emotions in check
guide parties through discussions about the issues
make sure all relevant issues are covered
help parties explore a variety of options
provide time for privates sessions during the mediation
A mediator may adjourn the mediation or conduct the mediation over multiple meetings and in different locations.
The mediation may conclude whether or not the participants have reached an agreement.
When may mediation be suspended or terminated?
A mediator may suspend or terminate the mediation if they form the view that it is no longer suitable or productive, for example where:
a participant is unable or unwilling to participate or continue in the mediation
a participant is misusing the mediation
a participant is not engaging in the mediation in good faith
the safety of one or more participants may be at risk
Where possible, the mediator should advise of their intention to suspend or terminate the mediation.
If terminating the mediation, where appropriate, the mediator should encourage the participants to consider alternative procedures for achieving resolution.
Is mediation confidential?
Mediation sessions are private and everything you say in front of a mediator during mediation is confidential – except in certain circumstances, such as to prevent a threat to someone's life or health or the commission of a crime.
Matters discussed in mediation cannot be used as evidence in legal proceedings, unless all parties consent.
What if you are feeling unsafe?
It is important that you feel safe, and that you are safe before, during and after mediation.
If you have any concerns about your safety or the safety of your children or any other person, you should tell your mediator and legal practitioner immediately. This may mean that mediation does not proceed, is suspended or terminated, or the mediation process is modified.
Can I attend FDR if there is an intervention order?
If there is a current family violence order, you or your legal practitioner must show your mediator the document to confirm that mediation is permitted under the terms of the order.
What happens to agreements reached at mediation?
If the parties are legally assisted, their legal practitioners will be responsible for preparing:
a ‘heads of agreement’ document during the mediation
all legally binding documents following the mediation such as a minute of orders to be made by consent by the court, financial agreement and/or child support agreement.
What will mediation cost?
Goldberg Family Law Mediation is a private family law mediation provider.
Our fixed fee covers preparation, a pre-mediation interview with each party and the mediation itself up to a full day.
If the mediation is held at our office, there is no additional venue cost. If the mediation is held elsewhere, the parties are responsible for arranging a suitable venue at their expense. We reserve the right to charge reasonable travel and accommodation expenses.
Each party is responsible for the cost of their individual lawyer.
While the fees for mediation are usually shared equally, it is open to the parties to agree upon a different payment arrangement.
If you would like further information about fixed fee mediation or the family law mediation services offered by Goldberg Family Law Mediation, please do not hesitate to contact us.