Introduction
The following blog will outline the nature of mediation services in Australia. It will look at where mediation sits in the dispute resolution field, the types of mediation available, the benefits over other forms of dispute resolution, and a number of the characteristics of mediation.
What are Mediation Services?
Mediation services are those that provide a dispute resolution service for parties in conflict. They seek to hear from both sides and help the parties in dispute to come to a solution that works for both. Mediation services are usually future focussed and seek to ensure that the parties can maintain a positive relationship going forward. Mediation services are provided by trained and registered mediators with a skill set that enables them to facilitate a mediation that is free from power imbalances, is positively focussed, and is undertaken neutrally.
How is a Mediation Service Different From Other Conflict Resolution Strategies?
Mediation services differ from other forms of dispute resolution such as arbitration or court based services, in a number of important ways.
Mediation seeks to have the parties in dispute come to their own resolution, ideally collaboratively. Parties are encouraged to negotiate and reach agreement together. This process can be empowering and affirming and the results are likely to have been reality tested with any implementation issues present being addressed
This is markedly different from arbitration or court based resolutions.
In arbitration the parties are heard, facts gained, and an independent arbitrator will then make a decision that is legally binding. It is adversarial and the decision making is done by the independent third party. Being legally binding there are consequences for failing to follow the decision. Often the arbitrator is a subject expert e.g. an arbitrator who is a former construction manager and who only arbitrates building industry disputes.
Much like arbitration using the court system to have disputes resolved is adversarial. Arguably more so! Cross examination can take place. Unless ordered otherwise the court system in Australia is premised on the notion of being transparent and accessible to the public. This means that the public are able to be present during court cases. Both sides present their evidence and a judge makes a legally binding decision.
Neither arbitration or the court system are empowering for parties. In fact it could be reasonably argued that they are inherently disempowering as the parties have no say in the final decision, are constrained by it, and suffer negative consequences for failing to adhere to it.
The cost of mediation is also significantly lower than both arbitration and litigation. With lawyers utilised for the later two forms the costs for parties can become significant. With mediation it is assumed that the disputing parties have the capacity within themselves to navigate their way to a solution without lawyers.
Importantly, the wait times to arbitrate or litigate can be substantial. At Resolutions Australia we’re usually able to mediate within 2 weeks of first contact from a client. With arbitration it may take several months and with litigation via the courts it can take years to have an issue resolved.
The emotional fallout from being disempowered, entering an adversarial conflict, paying significant costs, and having to wait months or years is hugely greater than it is for those parties making the choice to mediate!
How Family Mediation Services Work?
Family mediation services in Australia are those that support couples going through divorce or those impacted by a split family situation.
The Family Court expects couples who are divorcing to attempt mediation. This is known as family dispute resolution and is carried out by a family dispute resolution practitioner. These are specialist mediators who have post graduate qualifications in the area and are registered with the Office of the Attorney General of Australia.
The two parties in conflict will each have an individual, confidential intake session with the mediator. From there a mediation session takes place and it is hoped an agreement is reached.
The mediation is framed around the family law concept of the best interests of the child(ren.)
At Resolutions Australia we always recommend clients seek independent financial advice prior to mediation.
Types of Mediation Services Available in Australia
Family Mediation Services
This type of mediation is for those who are divorcing and wish to create a parenting plan to ensure the children impacted are catered for. The best interests of the children are the focus and planning around time with each parent, responsibilities, and contingencies are all examined with the parenting plan resulting.
Divorce Mediation Services
This type of mediation is useful for couples who have split and wish to better understand and navigate the divorce process. This mediation can resolve issues presenting as well as establish a framework for how the split couple will behave, communicate, address issues etc. In short it could almost be described as a ‘rules of engagement’ type agreement that creates structure during difficult times.
Couples Mediation Services
When a couple seek to part ways they can seek the support of a mediator to ensure this is done fairly and smoothly. When a couple doesn’t have children they will primarily be mediating around assets and liabilities. The property owned, possessions, financial holdings and any business interests they have.
Benefits of Mediation in Resolving Disputes
There are so many benefits to using mediation we could write a book!
Just a few… mediation is substantially cheaper than other forms of dispute resolution. Mediation has the parties in conflict find their own way forward together. This means collaboration, discussion, insight, reflection, authenticity, and congruence. Together issues are resolved and a new normal becomes clear. Far better than the ‘I win, you lose’ model that other forms of resolution use!
How Much Do Mediation Services Cost in Australia?
- Government-funded/free options (Family Relationship Centres, community justice centres): Strictly speaking there are few, if any totally ‘free’ options available for mediation. While a number of NGOs and charities provide heavily government subsidised mediation there is a cost. It is nominal, thus making mediation accessible. In saying this, you do get what you pay for.
- Private mediator fee ranges: Private mediation services usually charge between $2000 and $6000. This can reflect a number of factors such as experience, reputation, location, and any specialisations the mediator may have. At Resolutions Australia we’ve designed a fantastic online model of mediation that allows us to minimise our overheads and thus keep costs for clients very low. We charge just $800 per client for intake and standard 4 hour mediation. No other costs, charges, taxes. We’re hugely proud of our accessibility and timeliness due to the effective model of family mediation we provide.
- What “cheap mediation services” actually means value vs price: The cheaper government subsidised options mentioned above have hugely impactful limitations. Generally your mediation session is only 2-3 hours which is less than a standard 4 hour block provided privately. You may well end up having intake and mediation conducted by two different practitioners. This means your mediator may have only had a few minutes to scan your intake notes prior to the mediation session. Certainly not enough time to be adequately prepared and knowledgeable around your unique situation and its nuances! Your intake may have been shorter in the first place, and conducted by a staff member under a strict time limit. Again, far from ideal. Unfortunately for many, this is the mediation they will get. It is immensely difficult to accept the cheaper option as being suitable for resolving significant issues surrounding the best interests of children!
What Issues Can Family Mediation Resolve?
Parenting Arrangements
These are often the bread and butter of family mediation services. Family mediators can support clients to create a parenting plan that establishes time and responsibilities with the children. Pick-up and drop offs, emergencies, special occasions, contingency planning, time with extended family, school holiday routines, and any other impacting factors for the kids can be planned for. These are purposeful, nuts and bolts type agreements that provide a framework for the now split family.
Property and Financial Settlements
It is very common for family mediation practitioners to support split couples to divide their assets, liabilities, property, and financial interests fairly. Remembering of course that this division needs to be made in the best interests of the children.
Family Disputes Beyond Separation
Often other disputes beyond the norm can be resolved via mediation. Examples of these issues may include extended family care, religious or cultural obligations, child safety, friend groupings, school or tertiary choices, or timings of events such as learning to drive or going flatting.
How to Choose the Right Mediation Service for Your Situation
It is important when choosing a mediation service to actually speak with your potential mediator. Ask questions, listen actively, and recognise what’s important to you about the service you choose. Do you prioritise cost, or timeliness, does location matter, can they handle shuttle or online mediation? Consider what’s right for you.
At Resolutions Australia we pride ourselves on being driven by client needs as opposed to our organisational needs. We have the time and energy to cater to your particular situation. Something so many other services simply don’t do.
Summary
Dispute resolution comes in a range of forms and types. Mediation provides numerous benefits for resolving issues, well beyond just getting the problem solved.
It’s important to recognise the different characteristics of each type of mediation, and mediation service provider, when making decisions about next steps.
If you’re ready to use mediation to support you then we’d love to hear from you. Call or email us and we’re happy to offer you a free consultation about your situation.
Frequently Asked Questions
What should you not say during mediation?
During a family mediation session it’s important to remember that you’re there to collaborate for the best interests of the children impacted.
With this in mind your family mediator will support both parties to remain civil, and focused on the content of the mediation rather than any ill will between them. This means no inappropriate communication e.g raised voices, profanities, name calling, defiant or threatening body language. It also means not rehashing the past. The mediation is about the present and the new future. The split has been made and what has occurred has occurred. We’re now looking forward and establishing how this will be managed. With this in mind your mediator will likely step in and stop any drifting backwards. Sentences that start with “This is what always happens…”, or “He/she always does this…” are out!
Instead it’s about recognising what will need to change to make the planning work.
Is there a free mediation service?
Strictly speaking there are few, if any totally ‘free’ options available for mediation. While a number of NGOs and charities provide heavily government subsidised mediation there is a cost. It is nominal, thus making mediation accessible. In saying this, you do get what you pay for.
What’s the difference between mediation and arbitration?
The biggest difference is that in divorce mediation the ex couple work collaboratively to best address the needs of the children. In arbitration it is party versus party with an arbitrator making the decisions. Certainly not as conducive to a positive outcome as family mediation!
The cost of going to arbitration can be in the tens of thousands of dollars e.g. a lengthy, perhaps full day hearing, your lawyer’s time on the day plus their preparation time. You might also have additional costs such as a psychologist giving evidence who is speaking to a report on the children they wrote… the cost of that report. The bill can rocket upwards remarkably quickly.
Family mediation? A tiny fraction of the cost. At Resolutions Australia a full intake and mediation session will cost $800 per person. A significantly cheaper option!
An important difference between family mediation and going to arbitration is the emotional toll arbitration can have. Collaborative family mediation is much more conducive to a more positive parenting relationship going forward than an adversarial arbitration case where lawyers argue and arbitrators decide on what’s best for the kids.
Lastly, you can often see a family mediator within a week or two. Try to get an arbitration hearing and you’ll be waiting months.
Do both parties have to agree to mediation?
Yes. If someone is unwilling to mediate then the divorce mediation won’t take place. The willing party will be issued a section 60i certificate by the mediator and then the matter may progress to court. If a party has refused to attend and then appears in court there’s every chance the judge will order them to pay the other parties legal costs given the refusal to mediate.
There are other circumstances where a party may be unwilling to attend e.g. domestic violence issues, mental or physical health problems, or their capacity to understand proceedings with the appropriate depth and clarity. These situations are handled differently to a refusal. If this applies to a client (or potential client) one of our mediators will talk them through.
