FREQUENTLY ASKED QUESTIONS ABOUT MEDIATION and FAMILY DISPUTE RESOLUTION
What is mediation?
Mediation is a peaceful, effective, quick, fair and inexpensive way to resolve conflict utilising skilled mediators instead of going to court, making things worse or letting things go unresolved. It costs far less than litigation and helps to keep you out of court.
What are the steps in mediation/dispute resolution?
interMEDIATE Dispute Management provides a procedurally fair co-model of mediation and Family Dispute Resolution. This means 2 mediators working together with you as a team. Usually a female and a male mediator work together in a gender balanced process. This allows parties to benefit from the greater skills, and experience of both mediators as well as attention to the needs of both parties. This model allows us to build the documents during the session, ready for editing, printing and signing at the end of the session. Read more about the interMEDIATE Dispute Resolution model of mediation at the end of this page.
Can my lawyer do the same thing?
Some lawyers are also mediators, however if they are YOUR lawyer advising you, then they cannot mediate for you, as that would create a conflict of interest. Mediators do not represent you, fight for you or give legal advice. Even lawyers or retired magistrates cannot advise, or suggest legal outcomes for the parties in mediation.
Why mediation rather than litigation?
Lawyers are great for legal advice, in fact we encourage parties to get valuable legal advice prior to mediation. The problem with litigation is that it is adversarial. It is about a fight, and it is not meant to be a fair fight. It is about overpowering. It is the job of a lawyer to win for you, and that means the other party loses. No lawyer will guarantee a win, and it is always risky. It is the job of a lawyer to maximise your share of a settlement or advocate for you in parenting. Mediation is different. Instead of a fight, we help parties to talk to each other when they are unable to do so effectively or fairly by themselves. We help both, or all parties in an unbiased and impartial process to come to an agreement they can both/all LIVE WITH.
Won’t I win in court?
Court needs to be the last resort, not the first. Court is always risky. No lawyer can guarantee a win in court. It is stressful, can take years and cost you hundreds of thousands of dollars. Many people believe that a judge or magistrate will recognise their principle, the harm that has been done to them by the other party and will rule in their favour. The sad truth is that the judge applies the letter of the law, regardless of how you feel the other person has harmed you. Court is costly and it is often the person who can afford to stay in the process the longest that wins. Although they often won’t admit it, parents who are busy at war with each other cannot give their children the level of attention and care they deserve. Except for cases which are inappropriate for mediation (e.g. when children are at risk), it is the children who are the real losers when parents go to court.
What about the cost of mediation?
Mediation costs a fraction of that of litigation. Expect to pay around $1600 each for a complete process, from enquiry to printed agreements.
Who pays for mediation?
Mediation is intended to benefit both/all parties equally.
In family and commercial, the cost is shared and each party pays equally. When one party cannot afford to pay, one party may agree to pay for the other, and this may be repaid upon settlement. If affordability remains an issue for one party, the other may agree to pay and not be repaid. This needs to be established at the outset. It is important to know that when one person pays, they do not get preferential treatment, and when one person is paid for, we need to be assured that they will make a genuine effort.
In workplace the employer pays. Most workplaces have a clause in their signed workplace agreement that workers will attend mediation if there is a dispute and the employer decides it is necessary.
What if the other party doesn’t agree to attend Family Dispute Resolution?
In most instances, it is compulsory for parents to attend Family Dispute Resolution for parenting issues, before they can file in court. When one parent has asked us to assist in Family Dispute Resolution and the other person does not want to engage, we will suggest they speak with their legal advisor. Their legal advisor will let them know about the compulsory nature.
What is 60i Certificate?
The (s)60i Certificate is a document which can only be issued by an Accredited Family Dispute Resolution Practitioner (FDRP). This is done after the FDRP has assessed the case and decided under which paragraph the certificate should be issued. The certificate can be provided to acknowledge which parties have engaged and made a genuine effort in the process or not, whether the case was and remained suitable for FDR. There are 5 categories – please refer to Sample 60i Certificate for details. The certificate cannot be revoked, however by making a genuine effort after the certificate has been issued, a new one may be provided. A new certificate is not likely to be required when parties agree in FDR.
Can I bring my lawyer or my friend into the mediation room?
Each person is entitled to bring a Non-Participating Support Person. It is important that any friend is not going to make the other person feel intimidated or angry, each person must be agreed to by all parties. Non-Participating Support Persons must sign an agreement regarding confidentiality and their agreement to remain silent.
How long will the process take?
As long as both or all parties are ready and willing to go ahead, mediation and Family Dispute Resolution with interMEDIATE Dispute Management can be completed within a week or two.
When and where can mediation take place?
interMEDIATE Dispute Management has an outreach service, which means we aim to find a neutral venue in an area that suits both parties. When this is not possible, we have a very powerful Telephone Dispute Resolution process in the Co-Model (TDR-Co). For your convenience, services are available during and after hours, 7 days a week.
What can we mediate about?
In Family Dispute Resolution discussions and agreements are always in the best interests of the children and usually around co-parenting, step-parenting, grandparenting, and include parenting plans, who the children will live with and spend time with (used to be known as child custody), property and financial agreements, communication, relationship as parents/grandparents/stepparents. We mediate disputes about Wills and Estates, step-parenting, sibling issues, elder issues etc.
In workplace mediation is often about resolving interpersonal conflict, as well as resolving conduct, policy and even some bullying issues.
in Commercial Mediation any issues such as contractual, service, business ownership, business relationships & communications and othersmay be mediated.
As long as we are not breaking any laws, such as when there is an Apprehended Violence Order (AVO) which prevents parties from mediating. Sometimes, when there is an AVO or ADVO (or similar), courts can adjust the document to allow for mediation.
What if there has been violence?
As long as there are no legal reasons not to mediate, and as long as it is appropriate, you can still mediate. Our Initial Assessment will help determine suitability.
What if we can’t be in the same room?
Whether it is because it is inappropriate to have both parties in one room or because of unreasonable distances between parties, we can provide Telephone Dispute Resolution or we can provide it by Skype or other online meeting process. In fact about 50% of our mediations are done by these methods.
What is confidential and why?
Discussions in mediation are confidential. Nothing that comes from that conversation can be taken to court. Mediators cannot be subpoenaed to give evidence and all notes are destroyed. Notes taken by parties during the session are not to be taken out of the room and will be destroyed along with mediators notes. No recording devices may be activated during the session. The agreement cannot be discussed with others outside the mediation room unless specified in the document. The document will state with whom the document can be shared and discussed, and what parts will be shared with whom.
This helps all participants to fully discuss issues which they would otherwise have felt in danger of external consequences, to build a greater mutual understanding and enable more practical, robust agreements.
Are agreements made in mediation legally binding?
That depends on intention. If all parties intend an agreement to be legally binding, then this is written into the agreement and it is as legally binding as any contract. Binding contracts can be challenged in court, so many people decide to have their mediated agreements made into Orders by Consent in a court. This is simply a stamping process, not a court case. There is a fee to pay to the court. Parenting Plans can be converted by completing a court document and submitting that to become orders by consent. This is often done by a lawyer on behalf of the parents, once the parties have agreed to the Parenting Plan.
What model does interMEDIATE Dispute Management use?
interMEDIATE Dispute Management have developed their own model throughout the last 22 years. Lawyer mediators mostly use a settlement model, which puts parties in separate rooms and they move from one room to the other, delivering negotiations until resolved. Most mediators use a Facilitative model, which helps ensure an even handed process. Higher level mediators utilise a Transformative model (Bush & Folger), which better addresses the human needs. It encourages understanding, acknowledgement between parties, even apologies. These make a huge difference in helping parties to move forward in their discussion and agreement. interMEDIATE Dispute Management utilises a blend of Facilitative, Transformative and adds a measure of Education as appropriate. When we recognise parties are not being respectful or are not relating or communicating well in other ways, we ask the permission of the parties to show them better ways. Our toolbox is full of really useful ways to help parties to recognise, learn and improve their relationships and communication during the mediation and into the future.
How much does mediation cost?
Mediation is far more affordable than litigation, or letting things go unresolved and allowed to escalate to dangerous levels.
In Family Dispute Resolution (FDR), charges are by the hour
In workplace/commercial charges are by the half day or day, with an hourly rate being applied for extra time.
We really can only assess how long each case will take once we have more information, however about 85% of cases will require a 1 hour Initial Assessment by phone with each party, followed by a 4 hour Joint Session. Please contact us for details.
If you have any questions at all, our friendly team are happy to help you. Please phone 1300 367 330 or email info@interMEDIATE.com.au
Changing the world, one peace at a time!
Trusted by organisations and families since 1995, we can help you to resolve your dispute and move forward. With our team’s, more than 380 years combined dispute management expertise, our caring and competent professional team is here for you during and after hours, 7 days a week. We’ll come to you, arrange a convenient neutral venue or provide services by telephone and internet to guide all parties towards reaching peaceful resolution.