MEDIATION

WHEN SHOULD MEDIATION BE CONSIDERED?

o    The dispute is interest/value based and the legal aspects is not as important to the client

        Interests can be over tangible assets, strategic interest (such as the desire for reconciliation), relationship interests (long term working relationships, family or community relationships) 

o    There is a vested interest in the relationship as there will be an ongoing relation and future disputes could be limited by an exploration of the issues

        Consider this process if clients are interested in the humanistic aspects of the dispute, such as well-being, reconciliation of relationships, forgiveness, emotional and other psychological factors over the legal aspects of the dispute

o Commercial considerations are also important

o     Desire for the parties to maintain self-determination

o     There may be two or more parties involved and multiple issues to be addressed

o    Desire for the clients to keep the dispute confidential

o    A determinative process is not sought 

o    A neutral third party is welcomed

MEDIATION SHOULD NOT BE CONSIDERED WHEN:

X    The issue being disputed requires answers to pure legal questions of law and/or fact and not interests

X    There is a major disparity in power between parties involved and/or there are serious issues relating to violence - see Family Disputes section below.

X    The issue is a matter of policy and precedent should be set with that issue

ADVANTAGES

o  Quick settlement

o  Cost effective

o  Party self-determination

o  Confidentiality: communication is without prejudice and cannot be adduced as evidence (see s 131(1) of Evidence Act 1995 (Cth) and AWA Ltd v Daniels case

o  Communication lines are opened

Allows parties to communicate and gives them a chance to change the manner within which they had perceived the dispute. This will also present a client with the chance to remove the negative aspects of previous breakdowns in communication.

o   Tailored conflict interventions can be implemented by the mediator so that the client’s interests can be addressed effectively

      See Moore’s ‘Circle of Conflict: Causes and Interventions’ diagram for more information - Click here

o   Mediator can direct the parties to engage in open communication, which allows for therapeutic justice as there is a focus on listening to clients with an awareness of psychological and emotional issues.

     Conflict coaching can be used : lawyers can train clients to build empathy towards the other party and focus on reconciling the relationship through role plays which intends to assist clients in developing strategies to reduce the negative consequences of the conflict 

DISADVANTAGES

x  Legal rights are not protected as the process is interest based

X  Power imbalances may lead to unjust outcomes. 

This process is not suitable for parties within a relationship where there is a significant power imbalance. Stronger and more aggressive parties are provided with an opportunity to continue to exercise power and control over the weaker party as there are no procedural protections.

x  Mediation has no formal discovery process and relies entirely on the participants’ good faith. 

x  Mediator may not have particular expertise 

x  Agreements are not as binding and enforceable like court orders

COSTS

  o  Low.  Considered to be cheap but not cheaper than negotiation because the client must bear the costs of the mediator, the venue in which the mediation took place and any other associated costs.  These costs are very low  in comparison to court costs. 

REMEDIES

  o  Wide range of remedies that can be customised to meet the individual needs of the parties which is different to the limited remedies available in court.  

GOVERNING BODIES

o        LEADR: http://www.leadr.com.au/

o  To find a mediator please click here

MANDATORY ADR FOR FAMILY DISPUTES:

Family disputes: mediation may be the most appropriate process

o  Is there a post-separation dispute about children?

“Emotional distress and relationship breakdowns are inherent in family law disputes therefore while the Family Law Court have tried to resolve disputes via their limited remedial imagination, mediation encourages disputants to take responsibility for resolving dispute themselves…” (Rachel Field - click here for reference) 

Further Advantages: 

o  Empowering

-       Provides client with a positive and constructive environment in which co-operative bargaining and consensus in decision making is made possible 

Further Disadvantages:

 o Process can contribute to entrenching a party’s vulnerability

-        Section 4AB(1) of the Family Law Act 1975 (Cth) defines family violence. If the violence is emotional, physical, psychological, financial or social then there is a chance that an unjust outcome can result for the weaker party

-       Why?  Perpetrators that exert power and control over the weaker party may impose the same power during mediation (therefore not acting in good faith) and therefore it may be hard for the weaker party to maintain self-determination

ADVICE TO LAWYERS

-       Often victims will refrain from acknowledging violence because they feel ashamed, or think that they will not be believed.  It is therefore important to ask clients whether they have been subject to violence of any kind and then advise them that procedures are available to assist them despite their vulnerable position

-       In the event the client admits to being subjected to violence, you may consider to proceed to the collaborative law process.

Click here for negotiation, collaborative law, conciliation, arbitration and litigation