Prior to attending a joint session, a mediator needs to ensure that a matter is suited to mediation. The mediator must be satisfied that each party can negotiate freely before agreeing to provide mediation services. We normally send out questionnaires to help us decide whether a dispute is suitable for mediation. We also contact the other party, both in writing and by phone, to invite their participation in a joint session.
After the initial intake, a joint session is held up which can last up to 3 and a half hours. After that a further session or sessions may follow. The mediation takes place in our conference room, and the parties are never left alone or unattended during any joint session.
If an agreement can be reached (or even a partial agreement negotiated) then the mediator will write up the agreement which can then be made binding in Court. Sometimes a Parenting Plan under Section 63C is a better solution for the parties. The type of documentation which suits the parties best will be discussed at the end of their joint session.
Importantly, subject to some expectations, everything which is said in mediation remains confidential. If no agreement is reached, nothing said by either party in mediation can ever be relied upon in Court. This encourages people to speak freely without having to worry that something they say or an offer they may make might be used against them later by the other party.
We are aware that family law discussions, particularly if they involve children can be very difficult. Allegations or incidences of family violence are not uncommon. Your safety is extremely important to us. We usually stagger arrival times so that parties do not have to see each other prior to a joint session. At the end of a session we arrange for staggered departure times to avoid the possibility of the parties having to see each other directly after a session.
In appropriate cases we convene mediation where one party attends by conference phone call. In other cases we run “shuttle style” mediations where the parties (often with their lawyers) are physically separated at all times and where the mediator moves between the parties to facilitate discussions.
If we form the view at any time that a party is not coping emotionally with a joint mediation, the mediator will terminate the joint session and discussions may continue using shuttle model. Sometimes, a mediation may even be abandoned if circumstances require it.
Section 60I of the Family Law Act contemplates a variety of different outcomes in family dispute resolution, including:
- A determination by the practitioner that mediation would not be appropriate.
- That mediation started, but something happened (or was said) during the session that meant it was not appropriate to continue mediation.
The general provision which provides for confidentiality does not extend to bad conduct such as threats made by a party during mediation. This and other exceptions to the confidentiality rule are always discussed by the mediator with the parties prior to the start of the mediation.