Mediation Without Lawyers

A |  Preparation

• Each party prepares a short history statement, often with their legal adviser.
• Mediators meet with each party to undertake:
• Risk analysis and goal setting
• Completion of the Mediation Agreement

 B |  Mediation without lawyers

1. Fact finding and isolating issues
2. Creation of options and alternatives
3. Negotiation and decision making

Agreement reached     

4. Clarification and drafting of agreement

5. Review of process

No agreement reached

4.  Referral to other dispute resolution processes (eg Family Law Court)

C |  Implementation

At this stage the mediators will be obtaining from you as much relevant information as possible, identifying the issues to be discussed, and identifying any underlying conflict which may be associated with such issues.

The issues will deal with such matters as property, financial assistance and the children. Once the issues have been identified, the mediators will establish an agenda setting out the order in which the issues should be dealt with and which you and your former partner believe would be the most appropriate way of dealing with such issues.

At this point all the options and alternatives which could apply will be looked at and which could be of assistance in resolving the issues which have been identified. By dealing with the options and alternatives the parties will determine the most effective way of dealing with each issue.

At this time the parties will be encouraged to be as creative as possible in setting up these options and alternatives.

At this point, the parties will be:

1. Choosing options which they believe they can best live with;

2. Ensuring that they fully understand the details and implications of each proposal, and what their consequences will be for them.  This stage of the process may extend over one or two sessions.  As you could imagine, there will be a lot of discussion at this point in reaching agreement on those options and alternatives.

Hopefully, agreements will be reached on issues which have been isolated and discussed, and a written draft will be prepared setting out your concerns, intentions, the facts agreed and decisions which have been reached. The agreement can also deal with the parties’ future dealings and relationships.

At this point, the parties will look at the matters that need to be made legally binding and determine the future review procedures required, if any.

This really speaks for itself in that the agreement is then put into practice.

During the course of the mediation it may be necessary to speak to either party separately for a variety of reasons. The purpose of the caucusing is to enable the process of mediation to proceed more smoothly. The mediators have a discretion as to whether or not the information disclosed during a caucus should be openly discussed when mediation recommences.

It is recommended that disclosure should be made so that the other party does not feel disadvantaged by not being part of the discussions which have taken place. Caucusing can take place in the following circumstances:

1. When there is an impasse and to prevent matters “bogging down”;
2. When it is necessary to gain confidential information;
3. To request that one party consents to the sharing of information;
4. To allow expressions of emotion;
5. To speak to one party if that party is engaging in destructive behaviour.
6. To speak to a party if that party is hostile.
7. If there is a power imbalance to assist the weaker party in the negotiations to fully express himself or herself and to make suggestions which may be of assistance in the mediation.

Mediation without lawyers is an alternative to litigation (court-based legal processes where the decision is made by a judge). Each has advantages depending on the circumstances of the issue or dispute to be resolved. This section is designed to help you decide whether mediation is the right course of action for you.

In many cases, the Family Law Act will require you to try an alternative dispute resolution method (collaboration, mediation or counselling) before you take a matter to court.

From 1 July 2007, almost every case involving children will have to use collaboration or mediation before it can be heard in the Family Court.

A. When mediation won’t work
Mediation requires each party to be equally able to speak and negotiate. Mediation is not recommended where there has been domestic violence or significant power imbalances. If this is the case for you then we recommend you seek assistance from your family lawyer to resolve your case in other ways.

B. Deciding what’s most important to you
Some people pursue litigation because they want to “win” at all cost. We believe there are other considerations when deciding how to proceed. If any of the following Life Goals apply to you then mediation might be a better solution for you.

C. Considering the likely outcomes
Litigation and adjudication by a judge can have some disadvantages you should consider when making your decision, including:

• results can be uncertain
• legal costs can be higher than outcomes
• hearings and judgements can be delayed
• judges can be stressed and impatient
• legal categories can hide the real conflicts
• legal remedies can be unimaginative
• legal action is often inaccessible because of financial restraints
• litigation rarely “finalises” conflict
• results can depend on experts skill
• the process can be convoluted
• it can disadvantage “one–shotters” (people who don’t have the resources to keep going with legal action)
• disputants lose control
• disputants can suffer hidden costs of trauma, absence from work, etc
• myths of justice, rationality and finality can hide realities
• constant procedural reforms
• case management multiplies hurdles
• can bring damaging publicity.

D. Counting the likely costs
Consider the following questions to decide whether legal action is worthwhile in your case:
1) How can I be fully effective in my relationship, my family and at work if these problems continue?
2) Do I have the time to properly prepare for dispute resolution if the conflicts are not resolved?

3) How much money will I spend on:

• Lawyers;
• Obtaining statements from witnesses;
• Engaging experts being involved in providing information for their reports;
• Arranging care for my family whilst this matter continues.

4) What damage, if any might flow in my family and with friends and associates in which I and my partner may label each other as:

• Abusive;
• Deceptive;
• Incompetent;
• Not a fit and proper person to be associated with the children;
• A liar and inconsiderate etc.

5) If this conflict continues for many years and the bitterness escalates, how will this affect my family and friends?

6) Will a judge fully understand my position if I go to Court?

7) Who will the judge blame for the troubles that we have in our family?

8) What dynamics will emerge if my friends and associates are subpoenaed and cross-examined?

9) What pressures will years of conflict place on my family?

10) After a full preparation of my case, will facts and dynamics in my relationship be any different at the door of the court and if so how?

11) Will years of argument effectively convince either of us that the other is legally or morally right or wrong?

12)  What are the risks of miscommunication by using correspondence and legal documents over many years of conflict?

13)  If we do not agree with the judge’s decision what chances do we have of appealing and what are the costs involved?

E. Advantages of Mediation without lawyers

1) Mediation without lawyers can be arranged speedily.

2) It will be necessary to complete a short history statement setting out details of your relationship. This can be prepared with or without the assistance of a solicitor. A copy of the statement which will be supplied is to be completed prior to the mediation.

3) The legal costs associated with mediation will be:

• The initial consultation with your solicitor (if engaged)
• The costs of the solicitor to assist with the completion of the short history statement should that be necessary
• The cost of the solicitor on the initial session
• The cost of the solicitor should you require advice from him/her during the course of the mediation
• The solicitor preparing consent documents for filing with the Family Court.

4) Agreement will be reached on the payment of the Mediators’ fees. The Mediators’ fees may be a shared arrangement.

5) Mediation enables a resolution to be reached speedily.  Because of the short duration for the preparation for and attending on the mediation the costs are limited.

6) A mediation without lawyers will assist the parties to have a “win-win” situation.

7) Mediation allows the parties to negotiate their own settlement which will give the parties a resolution which best suits their needs.

8) Agreement reached at mediation is not an agreement forced upon a party against their wishes.

9) Because mediation resolves matters speedily, minimal damage will flow through to family, friends and associates. It will minimise the bitterness which may exist between you and your partner.

10) Family, friends and associates will not be involved in the mediation and no pressures will be placed upon them.

11) The agreement reached in mediation will be reviewed by your solicitor (if a solicitor is engaged) and the legal ramifications will be fully explained.

MEDIATION IS THE PROCESS BY WHICH THE PARTICIPANTS, TOGETHER WITH THE ASSISTANCE OF A NEUTRAL PERSON OR PERSONS, SYSTEMATICALLY ISOLATE DISPUTE ISSUES IN ORDER TO DEVELOP OPTIONS, CONSIDER ALTERNATIVES AND REACH CONSENSUAL SETTLEMENT THAT WILL ACCOMMODATE THEIR NEEDS. MEDIATION IS A PROCESS WHICH EMPHASISES THE PARTICIPANTS’ OWN RESPONSIBILITIES FOR DECISION-MAKING IN MATTERS THAT AFFECT THEIR LIVES.

—-FOLBERG AND TAYLOR

WHAT ARE YOU’RE LIFE GOALS?

• TO GET ON WITH LIFE.
• TO AGREE ON PARENTING RESPONSIBILITIES FOR THE SAKE OF MY FAMILY AND IMPORTANTLY OUR CHILDREN.
• TO FINALISE THE FINANCIAL ISSUES ARISING FROM MY RELATIONSHIP AND TO INVEST TO MAKE MY FUTURE FINANCIAL POSITION SECURE.
• TO FINALISE A SETTLEMENT IN THE BEST INTERESTS OF THE CHILDREN AND IN FINANCIAL ISSUES WHICH WILL UNABLE ME TO INVEST MONEY FOR MY FUTURE.
• TO MINIMISE LEGAL FEES.
• TO STAY HEALTHY.
• TO REDUCE STRESS IN MY LIFE.
• TO TAKE A HOLIDAY.
• TO FOCUS ON MY WORK AND NOT THE CONFLICT IN MY RELATIONSHIP.
• TO AVOID BECOMING BITTER.
• TO REGAIN “CONTROL” OF MY LIFE.
• TO REACH A SATISFACTORY SETTLEMENT OF PARENTING AND FINANCIAL ISSUES.
• OTHER?