Collaborative Mediation

Collaborative Mediation
02 Feb

Collaborative Mediation

Joint Mediation with a collaborative trained solicitor and psychologist.

I am an Accredited Family Law Specialist.  Over the many years that I have been in practice I have been involved in all facets of Family Law and in all areas of Family Law mediation varying from the basic Legal Aid Conferencing to participating in mediation as a lawyer to clients and in the capacity as mediator.  I have observed the legal professional acting as mediators and have observed other professionals such as counsellors and welfare officers acting in this role.

Proper preparation of the parties is essential for a successful mediation.

The following steps are required for a successful mediation.
1. Risk Analysis
This will assist the parties to focus on the task ahead and the consequences which may flow if they cannot realistically negotiate their own settlement. It will assist the parties to participate in mediation to avoid the costs, both financial and emotional, involved in ligation.
2. Mediation Agreement
Setting the terms of the mediation.

3. Mediator’s Monologue

Providing the parties with knowledge of the mediation process.

4. Statement— Short history of relationship and issues in dispute

To assist the mediator and to be completed by the parties.

5. Mediation Information

General information regarding mediation prepared by the Queensland Law Society.

Mediations conducted by two mediators.

This is the most effective form of mediation. Mediations are conducted by a male and female mediator, both of whom have been collaborative trained. This provides a gender balance and is more conducive to a relaxed mediation. It also helps reduce any power imbalance that a party may feel. This form of mediation effectively deals with the family’s related legal and psychological issues involved in a family breakdown.

RISK ANALYSIS

EACH PARTY’S LIFE GOALS

  • To get on with life.
  • To agree 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 enable me to provide security 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:

RISK ANALYSIS

  1. How can I be fully effective in my marriage, 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 to my family, friends and associates if 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?

MEDIATION GROUND RULES:

1. Confidentiality

The mediators shall not voluntarily disclose to any other person, without the written consent of both of us, details of anything said, done or disclosed during mediation.

2. Privilege

We agree that all documents or statements produced, used or made in the mediation, not otherwise available or known or subject to other obligations of discovery, will be privileged and will not be disclosed in or relied upon or be the subject of a subpoena to give evidence or produce documents in any arbitration, litigious or judicial proceedings in respect of the dispute and neither shall the mediators be subpoenaed.

3. Subsequent Proceedings

The mediators will not accept the appointment as mediator in or act as solicitor or provide advice to a party to any arbitration, litigious or judicial proceeding relating to the disputes raised in mediation.

4. Termination of Mediation

Mediation is a voluntary process and either of us may withdraw at any time. The mediators may terminate the mediation at any time if it becomes impossible, for any reason to maintain the ground rules set out herein.

FAMILY MEDIATION

STATUTORY REQUIREMENTS

The 2006 Regulations under the Family Law Act require each mediation and family dispute resolution client be given the following information:

At least 1 day before family dispute resolution is started under sub regulation 62(3), each party to the family dispute resolution must be given a written statement that sets out the following information:

WHAT IS MEDIATION?

  1. That the process of family dispute resolution is one by which the parties involved, together with the assistance of the family dispute resolution practitioner:

I. solate issues in dispute; and
Il. Develop and consider options to resolve those issues; and

lll. If appropriate — attempt to agree to 1 or more of those options; and
IV. If a child is affected — attempt to agree to options that are in the best interests of the child;

  1. If the dispute involves a child:

I. That each parent has parental responsibility for the child, within the meaning of section 61B of the Act; and
Il. That the best interests of the child are the paramount consideration in any decision that affects him or her;

  1. That it is not the role of the family dispute resolution practitioner to provide the parties with legal advice (unless the family dispute resolution practitioner is also a legal practitioner);

WHAT DEGREE OF CONFIDENTIALITY?

  1. That, provided section 10 J of the Act applies, evidence of anything said, or any admission made, at family dispute resolution is not admissible:

I. In any Court (whether exercising federal jurisdiction or not); or

ll. In any proceedings before a person authorised by a law of the Commonwealth or a State or Territory, or by the consent of the parties, to hear evidence.

  1. The process of mediation and family dispute resolution has a degree of legal confidentiality with a list of exceptions, as set out in s. 1 OH of the Family Law Act.
    1. A family dispute resolution practitioner must not disclose a communication made to a practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.
    2. A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
    3. A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:

      a. If the person who made the communication is 18 or over — that person; orb.

      b. If the person who made the communication is a child who is under 18:

      i. each person who has parental responsibility (within the meaning of Part VII) for the child: or

      ii. a Court.

  1. A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:

a. Protecting a child from the risk of harm (whether physical or psychological): or
b. Preventing or lessening a serious and imminent threat to the life or health of a person; or
c. Reporting the commission, or preventing the likely commission, of an offence involving or a threat of violence to a person: or
d. Preventing or lessening a serious and imminent threat to the property of a person; or
e. Reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
f. If a lawyer independently represents a child’s interests under an order under section 68 L — assisting the lawyer to do so properly.

  1. A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.
  1. A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60 I
  1. Evidence that would be inadmissible because of section 10 J is not admissible merely because this section requires or authorises its disclosure.

Note: This means that the practitioner’s evidence is inadmissible in Court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.

  1. In this section communication includes admission.

WHEN IS MEDIATION THE RIGHT PROCESS?

  1. That family dispute resolution may not be appropriate for all disputes, particularly if a dispute involved violence that renders one party unable to negotiate freely because of

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