I wanted to share with my fellow mediators and most importantly with colleagues in the family law, psychologists, accountants and real estate some of the questions I am regularly receiving. It appears that the main challenge for a mediator is actually sharing with their clients what mediation is and the process involved.
What is Mediation and how does it work?
Mediation is a voluntary process which can be used in many situations where people are unable to reach an agreement to resolve a dispute. Mediation is facilitated by a mediator that does not have any personal involvement in the problem being resolved.
Why do Mediation?
Firstly and most importantly, mediation is cost-effective. It can be arranged and conflict resolved quicker than going through the legal system for family dispute resolution. It is also a confidential process whereby the court system isn’t. The mediator assesses safety in mediation to create a very private, safe and confidential environment for people to resolve their conflict.
How long between agreeing to mediation and proceeding with it?
Usually within 1 week. And from the Intake to the actual mediation is within 2 weeks.
What happens in the first initial meeting with the mediator?
I go through a series of question to understand why there is a need for mediation in the situation. Through a series of questions I also conduct a safe screen to assess if mediation is suitable. It is a confidential session where I am keen to get to know my client better and also assess for relevant referrals.
How long does it take?
The intake session takes 90 minutes. Mediation is typically 3 hours. Sometimes a separate session is required; we can schedule this for another time.
Who makes the decisions in mediation?
You do, this is the opportunity for the client to discuss their issues and come to an agreement without any unfair pressure or coercion.
The lawyer has referred me to you, why?
In the family law system, mediation is a mandatory process for reaching an agreement with children matters. This empowers the couples to discuss parenting matters for their children rather than a judge. A parenting plan (not legally enforceable) can be achieved, which can then be converted to a consent order (legally binding). Of course, couples do not have to go through mediation, if they are on amicable terms, they can reach an agreement on their own.
Do I need legal advice?
It is recommended that you seek legal advice before mediation however not necessary, keeping in mind that the mediator cannot provide any form of advice.
Are you able to find me a lawyer?
Most certainly, I collaborate with a large number of lawyers and will be happy to refer you to a lawyer.
Do you do property mediations?
Most definitely, I can assist my clients with property and assets division, this is another part of mediation which is also a confidential process. You will need to seek legal advice for further converting the agreement to a consent order or binding financial agreement.
In light of National Children's Week, I wanted to share an article on parenting plan, as stipulated in The Family Law Act 1975 clearly that the “best interest of the children” must be thought of during a separation/divorce.
For couples separating, it is a mandatory requirement that they undertake Family Dispute Resolution with a registered Practitioner. This empowers the parents to make decisions and reach an agreement for their own children in the presence of a registered mediator.
What is a Parenting Plan?
If your Parenting Agreement is written, signed and dated it becomes a Parenting Plan. It is not enforceable but can sometimes replace the terms of a court order and a court must take into consideration any Parenting Plan that replaces Court Orders. If you have been to court previously the FDR Practitioner will look at your most recent Court Orders during pre-mediation and advise you if a Parenting Plan can modify the terms of the order.
What is Family Dispute Resolution (FDR)?
Family Dispute Resolution is a dispute resolution process where Family Dispute Resolution practitioners assist people who are ending their relationships to resolve issues related to the ongoing care of their children, and or the division of their property and other financial matters. Family Dispute Resolution Practitioners are accredited mediators who have post graduate studies at the Graduate Diploma of Family Dispute Resolution level or above and have been approved by the Attorney Generals Department to mediate these matters. FDR Practitioners are bound by rules of conduct and a code of ethics which deal with how the FDR process must be facilitated.
Mediation in Australian Survivor
This may come as a surprise to you; although Jonathan LaPaglia has no apparent qualifications in mediation, he does outshine as the host (a mediator at tribal council) of the Australian Survivor series.
Survivor in a nutshell.
Survivor has 24 people (makes up 3 tribes of 8 people) on an island (Samoa) and after 55 days, through a series of challenges and voting each other out, only 1 survives and wins the total prize money of $500,000.00. The 24 people work together and also against each other. A tribe ends up in tribal council after losing a group challenge, and the member with the most votes on the night is voted out.
What does this have to do with mediation you ask?
So let’s review Survivor from a mediator’s perspective. A tribe ends up in tribal council who are now at conflict because a decision needs to be made on who to vote out and also who to trust? It isn’t so simple because alliances are formed as well as good friendships at times. In other words, everyone is trying to work with the others to win challenges and avoid elimination while at the same time not sure who they can trust and whether what they are being told is true. Sound familiar?
In mediation, there is an intake interview that the mediator holds with each party before mediation. That gives the mediator a greater understanding of what is motivating the parties to the mediation, their needs and what they hope to gain. In Survivor, the cameras are on 24 hours 7 days a week. Jonathan is aware what is going on at each tribe, especially before they meet at tribal council. So this is Jonathan’s intake and now he facilitates the conversation prior to voting.
At tribal council, Jonathan hones in on the issues that the tribe is facing, as he is already aware of what conversations have happened prior. In mediation, at the start we ask each party to state why they are at mediation. At this stage, I ask relevant questions to bring out the core issues and emotions. Through the questions I ask, and without divulging confidential information, I help the parties to share useful information and clear up misunderstandings.
This is where Jonathon just shines as a mediator. He asks every member of the tribe about how they feel, what has happened that makes them feel this way? Why does he do this?? It’s an important part of helping people to see other people’s perspective, called reframing. If you watch closely, Jonathan does this very cleverly. “So let me get this, what you are telling me is?” And goes on. He also goes on to explore the what if’s in conversation assisting people to consider alternatives.
These are all the traits and qualities of an excellent mediator.
And the best thing is; the others have to listen!