FAQs regarding Mediation processes

There are several options available to you if you need to resolve a dispute. The options vary in the time, cost and effort that you will need to invest. First, you can try to discuss the matter privately with the other person concerned to see if you can reach a mutually acceptable resolution without escalating the matter to any further costly and time-consuming steps. If that is not possible, or does not work, you will likely need to seek some professional assistance to reach a resolution. The next quickest and cheapest option is to try to resolve your dispute through mediation. Another option is to engage a lawyer to represent you and negotiate on your behalf either directly with the other person or via their legal representative. This option will cost you substantially more than a mediation process and will likely take much longer as well. And finally, you have the option of taking the matter to the appropriate court. Unless very extreme circumstances are present, you should always consider court as the absolute last resort option, as it will cost you a very large sum of money, potentially tens to hundreds of thousands of dollars, and may take many months or even years to come to a final judgement. It is also important to note that in many court jurisdictions, a matter cannot be listed for trail without proof that mediation has been attempted, as is the case in Australian Family Law matters involving parenting arrangements for children. In other cases, even though mediation may not be a mandatory pre-court activity, a Judge may order that mediation is attempted before advancing the case through to a trail.

Criminal matters are never mediated.

The mediation process will usually involve the following five steps:

1. The mediator will start by explaining the process they will be using and then ask everyone to agree to some basic ground rules of personal conduct

2. The mediator will give each person an opportunity to make an opening statement about what it is they want to discuss with the other person

3. The mediator will draw up an agenda, or list of mutually agreed items, for discussion and then help the participants to discuss these items and potential options and proposals in a safe, respectful and fair manner

4. The mediator may take time to talk privately and confidentially to the participants separately and/or give the them time to talk to their lawyers or support people.

5. If the participants can come to an agreement, the mediator will help them decide if, or how, they want it recorded.

No, mediators never give advice as they are independent and impartial in the mediation process. Similarly, the mediator’s role is not about finding the truth or deciding who is right and who is wrong and they do not ever decide the matter for the participants. The role of the mediator is to assist the participants to safely and fairly discuss the issues in dispute with particular emphasis on giving each person the opportunity to share what is important to them and why, and to respectfully listen to the needs and perspectives of the other person.

The mediation process will usually involve the following five steps:

1. The mediator will start by explaining the process they will be using and then ask everyone to agree to some basic ground rules of personal conduct during mediation

2. The mediator will give each person an opportunity to make an opening statement about what it is they want to discuss with the other person

3. The mediator will draw up an agenda, or list of mutually agreed items, for discussion and then help the participants to discuss these items and potential options and proposals in a safe, respectful and fair manner

4. The mediator may take time to talk privately and confidentially to the participants separately and/or give the them time to talk to their lawyers or support people.

5. If the participants can come to an agreement, the mediator will help them decide if, or how, they want it recorded.

Firstly, you need to ensure your mediator is qualified and registered. For a general mediation in Australia, including those in workplace and community settings, your mediator should have the nationally recognised NMAS qualification and be on the national NMAS register - https://msb.org.au/mediators

For family law matters (family mediation or divorce mediation)  in Australia, you mediator should be on the Australian Government register of Family Dispute Resolution Practitioners - https://www.fdrr.ag.gov.au/

Secondly, you can seek out reviews and personal recommendations for mediators in your local area and from within your networks or your from lawyer or counsellor or other professionals you may be in contact with. Most mediators will also be able to give you testimonials from previous mediation clients.

In most cases the only people present in the room during a mediation are the participants in the dispute and the mediator. Mediation participants may bring along an adult support person and/or a solicitor but only with the consent of the other participant/s. As support people are not active participants in the mediation process, they will not be offered the opportunity to speak. Sometimes support people wait outside the mediation room to be available to provide emotional support during breaks. Similarly, solicitors are not active participants in the mediation process either and are not asked to speak for their client. Their role is to be available for on-the-spot advice to their client during the process and in breaks. If a mediation participant brings along their solicitor to a mediation, they will be responsible for the cost of doing as a separate personal expense in addition to the costs of the mediation.

If the mediation matter under discussion relates to children under 18 years of age, such as agreeing upon the parenting arrangements after a separation (divorce mediation), the children will not ever attend the mediation. There is a variation of family mediation that provides an opportunity for children to meet with a child specialist professional prior to mediation and that professional can then attend the mediation to bring the voice of the children to the discussions.

Yes, you may, but only with the consent of the other participant/s. Solicitors are not active participants in the mediation and are not asked to speak for their client. Their role is to be available for on-the-spot advice to their client during the mediation process and in breaks.

Yes, you can, but you will need to consider what your objective is in doing so. The mediation process is future-focused and aimed at resolving a dispute so that the participants can move forward with their working relationship. Mediation is not about picking over events of the past or detailing who said what to whom and the mediator’s role is not about finding the truth or deciding who is right and who is wrong. As such, printouts of past email or text conversations are generally not required. 

If there are any court orders applicable to the matter, such as an Intervention Order or a Child Protection or Guardianship Order then your mediator will need to see those.

In some types of mediations, evidence may be helpful to substantiate your proposals, such as when a person is seeking to recover costs or other damages. This may take the form of contracts, invoices or receipts.

In Australian family law matters (divorce mediation) concerning the division of the relationship property pool, it can be helpful to have evidence of valuations and current bank balances available for the other participant to check over if they don’t already have access to that information themselves.

It is important to note that in many court jurisdictions, a matter cannot be listed for trial without proof that a mediation process has been attempted, as is the case in Australian Family Law matters (divorce mediation) involving parenting arrangements for children. In other cases, even though mediation may not be a mandatory pre-court activity, a Judge may order that mediation is attempted before advancing the case through to a trail. Unless very extreme circumstances are present, you should always consider court as the absolute last resort option, as it will cost you a very large sum of money, potentially tens to hundreds of thousands of dollars, and may take many months or even years to come to a final judgement.

The first thing you to know is that your participation in Australian Family Dispute Resolution (or family mediation or divorce mediation) is voluntary and remains so throughout the entire process. This means that you can decline the invitation to participate or that you can withdraw your voluntary participation at any time after dispute family mediation processes commence. Although you have the right to refuse, or withdraw from, family mediation there are some important consequences you need to know about if you do.

If the family mediation you refuse, or withdraw from, relates to parenting matters for children under 18 years old, a certificate can be issued to your former partner indicating that family mediation did not take place because you did not attend. Your name will be inserted into that certificate, known as an S60i Certificate which can then be presented to the Family Court by your former partner as the basis to commence an application for the court to hear your parenting matter. You will then be required to attend court as the respondent in the trail and the Judge may take your non-participation in mediation into account when awarding costs. The Judge may also make an Order that compels you to attend family mediation before listing the matter for trial. If this occurs you will be given a list a court mediators who are usually Barristers, or at least Lawyers, who charge significantly higher fees than pre-court Family Dispute Resolutions Practitioners.

If the family mediation you refuse, or withdraw from, relates to property matters, then either you or your former partner may commence an application for the court to hear your property matter without a special certificate being required. The Judge may inquire as to whether family mediation has been attempted, and again, may make an Order that compels you to attend family mediation before listing the matter for trial. If this occurs you will be given a list a court mediators who are usually Barristers, or at least Lawyers, who charge significantly higher fees than pre-court Family Dispute Resolution Practitioners.

If your desire to decline to participate in family mediation stems from concerns about your safety or if you think that you wouldn’t stand a chance against an overpowering person, then it is well worth considering agreeing to participate just in the first step of family mediation as your initial response. This is recommended as the family mediation process always commences with private individual sessions between the family mediator and each participant. This is often called Intake or Pre-Mediation and is a confidential process which means the family mediator will not disclose anything discussed with other mediation participants. Following the intake session, here will be a further opportunity for you to decide about consenting to voluntary ongoing participation in a joint family mediation session with the other person. 

Most single mediation sessions in Australia are 2 to 3 hours long. If there are only one or two matters to be resolved, then it is possible that it may all be finalised in a single session. Frequently, there is a need for several sessions to resolve more lengthy or complex matters or when the mediation process is slowed down by participants that are reluctant to be flexible and consider alternatives to their ideal outcomes.

If you have received an offer to settle your dispute and are undecided whether to accept it or to push on to a court trial, you will benefit from obtaining legal advice. You will need to get a very clear understanding of the most likely outcome you could expect from a court process and the cost in terms of time and money to get there. This information will provide you with a yardstick to evaluate your current offer against. You will need to weigh up whether the time and financial costs of going to court are more or less beneficial to you than accepting the current offer. You may also consider utilising the legal advice you have gained to make a counteroffer and keep the out-of-court negotiations going a little longer with the aim of improving the settlement conditions without going to court. You can do this either via lawyer negotiations or have considerably less expense by doing it in a mediation process.

Unless very extreme circumstances are present, you should always consider court as the absolute last resort option, as it will cost you a very large sum of money, potentially tens to hundreds of thousands of dollars, and may take many months or even years to come to a final judgement. It is also important to note that in many court jurisdictions, a matter cannot be listed for trial without proof that mediation has been attempted, as is the case in Australian Family Law matters involving children. In other cases, even though mediation may not be a mandatory pre-court activity, a Judge may order that mediation is attempted before advancing the case through to a trial.

If you have received an offer to settle your dispute and are undecided whether to accept it or to push on to a court trial, you will benefit from obtaining legal advice. You will need to get a very clear understanding of the most likely outcome you could expect from a court process and the cost in terms of time and money to get there. This information will provide you with a yardstick to evaluate your current offer against. You will need to weigh up whether the time and financial costs of going to court are more or less beneficial to you than accepting the current offer. You may also consider utilising the legal advice you have gained to make a counteroffer and keep the out-of-court negotiations going a little longer with the aim of improving the settlement conditions without going to court. You can do this either via lawyer negotiations or have considerably less expense by doing it in a mediation process.

If you reach agreements with the other participants in the mediation process, your mediator will help you decide if, or how, you want it recorded. Depending upon the type and circumstances of the issues in dispute, a simple written mediation agreement may be all that is necessary in some cases, whereas in other cases, the mediator’s  notes may need to sent to lawyers for drafting into a more formal legal document or to be readied for court applications. Either way, the mediator will give you the option of signing on the spot, or if you prefer, at a later date after first obtaining a legal opinion of the mediation agreement reached. The mediator will also advise you as to whether the agreement you are signing, or will later sign, is legally binding or not. It is expected that you make agreements in good faith and will willingly uphold your end of the agreement going forward into the future.