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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 Brisbane 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 a mediator. I have observed legal professionals 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.
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.
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.
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.
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.
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.
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:
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;
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;
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.
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.
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.
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.
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