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Mediation Without Lawyers

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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

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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?

Mediation Without Lawyers is conducted by two highly qualified mediators, a male and female to balance the dynamics of your own relationship.

The mediation is conducted without your own personal lawyer being present.  Although the mediators may have legal qualifications they will not be acting as your lawyers throughout the mediation process.  You can, outside of the mediation, consult your own lawyer and if an agreement is reached during the mediation you may obtain your own legal advice in regard to the legal ramifications of the terms of the agreement.

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Mediation can offer a positive way to resolve family and relationship issues in many cases. Whether it is for post-separation settlements, financial or pre-nuptial agreements or parenting and child support matters, mediation can offer an amicable, speedy, cost effective way to reach an agreement.

To be successful, mediation depends on two things: the skill of the mediator and the genuine willingness of the parties to participate openly.

A good mediator will help you identify the issues you face, come up with realistic options that suit you, and find solutions that will work.

Mediation without lawyers also requires some preparation. We at Family Law have developed a Guide to Mediation without lawyers to help our clients make sure mediation has the best possible chance of success in your relationship.

Please feel free to contact us at Family Law to discuss any aspect of your mediation or family law needs. 

Mediation without lawyers by Aylward Game Solicitors incorporating James Noble Family Law Brisbane

Ian Field has had extensive experience in mediation either actively participating as a solicitor to parties or as a mediator.

Mediation Without Lawyers is a concept that Ian Field has adopted after the success he had in the process of mediation with various matters.

Ian Field, is an Accredited Family Law Specialist and has undertaken relevant training.

Mediation Without Lawyers is conducted by two highly qualified mediators, a male and female to balance the dynamics of your own relationship.  The mediation is conducted without your own personal lawyer being present.

Although the mediators may have legal qualifications they will not be acting as your lawyers throughout the mediation process.  You can, outside of the mediation, consult your own lawyer and if an agreement is reached during the mediation you may obtain your own legal advice in regard to the legal ramifications of the terms of the agreement.

Mediation without lawyers is a voluntary process. There is nothing binding you, apart from your willingness to participate in reaching some resolution. The aim of Mediation Without Lawyers is to reach a resolution that satisfies both you and your former partner. If, at the end of the mediation, you feel cheated by the agreement which has been reached then mediation has not been successful.

Mediation Without Lawyers is different from private negotiation, negotiation through legal advisers and from litigation, which is the resolution of matters through the Courts.

Mediation without lawyers is used to help families through the practical difficulties which are encountered during and after separation, divorce and remarriage. People involved in mediation are usually highly motivated to reach a successful conclusion.

For Mediation Without Lawyers to work there must be an atmosphere of trust and matters must be discussed calmly. It is important that you communicate freely with each other and the mediators during the sessions. You should feel free to express feelings about any suggested agreement, and state reservations about fairness of “workability” of the agreement.

You must be willing to attend sessions of up to two hours duration (or longer if agreed).  The sessions may take place over one day or may extend in short sessions over a number of weeks. The parties will reach agreement as to when these sessions should take place at the conclusion of the first mediation without lawyers session, at which time we will know if you are willing to participate further, and if mediation will be of assistance to you.

You may be encouraged during the sessions to obtain further information from government departments, legal advisors, accountants or other experts, which will assist you to be fully informed of the matters which are in issue.

It is quite common, in any dispute, for the parties to have different beliefs about the facts. It is extremely important if Mediation Without Lawyers is to be successful, that you make full disclosure of all information available to you.

The mediation without lawyers will not be successful if you hold back on information; as such information may be relevant to the carrying out of any agreement which may be reached. You are encouraged to discuss the matters dealt with in the mediation with your legal adviser if you should feel that would be of benefit to you and with your accountant or other persons who can assist you.

At the conclusion of mediation without lawyers, a written summary setting out the terms and background will be prepared from the information which has been discussed and which will set out the terms agreed. If an agreement is reached, it is recommended that you have the agreement looked at by a legal advisor.

In most cases, the parties are encouraged to have the agreement placed before the Family Court by way of consent orders so that it becomes legally binding.  The mediators are able to draft the necessary consent documents for this purpose. Mediators remain neutral throughout the mediation without lawyers.

It is necessary that the mediators remain impartial and that they do not support or promote the interests of your interests or your former partner’s interests over the interests of the other party. Any information given or disclosed during the mediation without lawyers is strictly confidential and may not be disclosed to any other person without your written consent. Without permission or consent, the mediators cannot be forced to make any disclosure to any other person, or Court, of information given during the course of the mediation without lawyers.

The Mediation Without Lawyers Process

  A |  Preparation

    1. Each party prepares a short history statement, often with their legal adviser.
    2. 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                                                                           No agreement reached

  1. Clarification and drafting of agreement                             4.  Referral to other dispute resolution processes (eg Family Law Court)
  2. Review of process

   C |  Implementation

Fact finding and isolation of issues
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.

Creation of options and alternatives via mediation without lawyers

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.

Negotiation and decision-making

At this point, the parties will be:

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

Clarification of agreements reached

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.

Review of Process

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.

Implementation stage

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

Caucusing

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.

Deciding on 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.