Process & FAQ

What to do now: Mediation Process 

      1. Contact us & find out how we can help

During your initial phone enquiry, I will request a brief explanation your dispute to help me understand how I can help. If mediation is right for you, I’ll email you more about our process and fees.

      2.  Invitation to Mediate

I’ll contact you to work out some preferred dates for your Mediation. I will then contact the other party with an invitation to attend the process. 

      3. Intake Session:

Both you and the other party attend separate in-take sessions, so I can understand your requirements as well as assessing the level of conflict. I’ll talk you through the mediation session itself, and what to expect. I will then provide you with guidelines and referrals to best prepare you both for succeeding at mediation.

      4. Mediation

The mediation session takes place with both parties present. I will speak with you together and/or separately to ensure that we are including issues, concerns and expectations and create an agenda for the session. I will then guide the discussion and help you investigate potential mutually agreeable options and solutions. If an agreement or partial agreement is reached, I will give both parties a copy of the agreement and give you options on what you can do next. NB: Olive Branch Mediation does not give legal advice, but can give information for the next steps forward. 

* Marital Mediation NB: this is not marriage counselling.

Marital Mediation does not seek to delve into the past or interpersonal, psychological issues or trauma. Marital Mediation can help develop concrete plans that can help address the issues. This may include seeking relationship counselling as a couple or as individuals. The mediator helps define the root of the issues as well as the surface ones, gains understanding, discover hidden interests and creates options for breaking the impasse or the stalemate. The mediator will facilitate dialogue where clients can independently set goals and objective together for mutual implementation and improvement. The mediation process helps couples to realize their own solutions to conflict – and this will be different for each couple. Marital mediation is a process for couples who are experiencing marriage problems and who want to stay together. It is a practical, solution-focused approach in which the couple identities, explores, negotiates and self-determines what is right for them moving forward.

        * Conciliation Conference

Conciliation is a process where the mediator assists the parties to identify the issues, develop options, consider alternatives and endeavours to  reach an agreement. The conciliator can advise on the topics in dispute and/or the outcome of its resolution, but the role is not determinative. The conciliator can give advice, suggestions for terms or conditions, and actively encourages the parties to participate to reach agreement. The major difference between mediator and conciliator is that a mediator does not offer an opinion or advice, they are there to facilitate the conversation;  a conciliator has an active role in the conversation, but not on the agreement of the parties. 

FAQs

  • What are the advantages of mediation?
  • What do you mean by 'progress' in your slogan?
  • What do family mediators do?
  • Can my child have a say?
  • What if the other party won't attend?
  • How long does mediation take?
  • When should I start mediating?
  • Can mediation lead to legally binding agreements?
  • Do we have to sit in the same room?
  • Can a mediator give legal advice?
  • What if the other party, my partner or ex-partner is completely irrational, he/she is inflexible and highly emotional?
  • What if there has been a history of violence or drug abuse in the family?
  • Should I try mediation if I am divorcing, I already have a lawyer?
  • What if a plan cannot be reached?
  • What are the financial advantages of mediation over litigation?
  • Is the mediation session confidential?
  • Is mediation always successful?

What are the advantages of mediation? 

  1. You, together, will make the decisionsYou, the individuals involved, are the ones who know your situation, your children and family best.
  2. Mediation is much faster and less expensive than working your way through the many complex steps of litigation/court.
  3. Mediation is much less distressing than fighting in court.

What do you mean by 'progress' in your slogan?

Clients often interpret 'progress' as getting what they set out to achieve. In mediation, it can mean something different. There is no magic wand. Mediation enables a dialogue between clients in conflict. The process often results in removing misunderstanding and assumptions. OBM refers to 'progress' as offering the best chance for clients to achieve a meaningful dialogue to resolve their matter or for their matter to progress - leaving you in a clearer position than when you started. Whether that means you get 'your way' or not is a different story. Mediation cannot guarantee a conclusion to your matter, but gets results in the form of progress.

What do family mediators do?

Mediators help families and separating couples resolve disagreements about marriage, separation, divorce, parenting schedules, child support, spousal maintenance, property division, elder care, the family budget, distribution of inherited property and other family matters. Mediators also deal with civil matters that follow the same process.

In the session, each party will:

  • identify the issues that need to be resolved;
  • prioritize the issues and focus on one at a time;
  • discuss possible solutions;
  • come to agreement about parenting plans and/or financial or other issues;
  • have a draft prepared of their emerging agreement; and
  • review, revise, and prepare the agreement for signing.

Can my child have a say?

Child inclusive mediation (CIM) is a process where children are interviewed separate to the parents to get an understanding of what the children are experiencing. CIM is not appropriate for everyone and has to have the consent of both parents and the children. Parents are assessed at intake to determine whether CIM is appropriate for their circumstances. Children under the age of five are not included in CIM unless there is an older sibling. The children do not make any decisions on what goes into a parenting plan - that is for the adults to work out.

What if the other party won't attend?

     You will be issued with a 60I certificate. It is valid for 12 months. You are required to have this certificate to start proceedings in court. 

How long does mediation take?

Each party has an individual intake session lasting 1-1.5 hours each. Then, if deemed appropriate, the parties come together for a 3 hour session. This can be done in one sitting with a break in between, or over 2 sessions. Most mediations fall within this timeframe, however divorce or separation including property can take longer. OBM has after-hours appointments for working families. At the individual session, I will give you a clearer idea of the complexity of your case and what would work best for you and the overall timeframe. In some instances, multiple sessions may be useful to go through all issues that are presented at intake, if this is the case, it will be recommended after intake.  

Mediation is very easy and helpful in family matters. It's also much quicker and cheaper than solicitors.

When should I start mediating?

A lot of people attempt to negotiate between themselves first, which is a great starting point. OBM can skillfully address issues and concerns that may be hard to discuss with an ex-partner as well as ensuring a balance of power and fairness to both parties. Whatever stage you are at, it’s never too late to start mediation. Even if you have tried mediation before and/or started court proceedings, a second attempt with a different mediator may change the outcome and save you time, money and the heartache of court. OBM gives you checklists and guidance in your intake session to best prepare you and the other party for the best possible preparation and outcomes. It is best to try mediation before the litigation process creates too much mistrust between the parties and before the lawyers initiate expensive discovery processes. Mediation early on can save the parties thousands of dollars and minimize long-term distress.

The mediation process is an approachable, supportive alternate route than directly to court.

Can mediation lead to legally binding agreements?

Yes, any agreement that can be reached through mediation can be filed at the appropriate court into legal binding agreements, such as Consent Orders in Family Law. However, what you achieve in mediation is in essence a goodwill agreement between the parties. Both parties need to sign and date each page of the agreement to make it a Parenting Plan. Parenting Plans are sufficient for Centrelink, Child Support Agency and they hold weigh in court. If agreement is reached between the parties, I can write up the joint agreement for you, you can then seek legal advice to check over the agreement, then file will the court, either through a law firm or by yourself. In family matters, if no agreement is reached in mediation, I am authorised to issue a Section 60I certificate that allows you to file in court - you generally cannot file in Federal Circuit Court without one.

Do we have to sit in the same room?

OBM is about communication, not confrontation. We can discuss the different ways that mediation can be arranged to ensure you feel safe, comfortable and heard. For example, you can arrive, leave and wait separately; you can take breaks to compose yourself and re-set. In situations where one party may feel intimidated we can discuss a model of mediation using separate rooms.

As mediators we are in a unique role that does not involve representing or advocating for either party—we are neutral to both parties. 

Can a mediator give legal advice?

Mediators can give you information about state laws, local court procedures and can tell you about other resources available, but Olive Branch Mediation does not give legal advice. OBM does not interpret statutes or advise about or recommend any specific legal action that would benefit either party over the other.

What if the other party, my partner or ex-partner is completely irrational, he/she is inflexible and highly emotional?

More often than not, mediation works anyway. OBM helps each party to communicate both ways, mediators are very skilled at facilitating the session so that a balance of conversation is achieved, both the opportunity to be heard and the opportunity to be hear what is being said. I will steer the conversation to focus on each party’s priorities. For most people, face-to-face meetings are most efficient and effective, this can be confronting and will cause emotions and reactions in some cases. OBM prepares each client for the best possible mediation session, so you have the best chance at reaching the desired outcome.  Some clients require separate sessions - in such situations, the mediator meets with each party separately, asks questions, and carries relevant information and proposals back and forth between the parties. 

What if there has been a history of violence or drug abuse in the family?

I will assess whether mediation can be safe and effective after understanding the nature, frequency, and intensity of prior incidents of such abuse. If safety can be assured and each party is able to understand the implications of decisions being considered, then mediation may still proceed successfully. I can also deem a mediation inappropriate and issue a 60I certificate.

 Should I try mediation if I am divorcing, I already have a lawyer?

Can you imagine going to your lawyer with only 2-3 things to work out instead of a whole relationship's worth? Can you imagine the time, energy and money that could be saved for both you and the other party? Mediation puts you in control. You can hire or keep a lawyer to give advice but you and the other party can do the negotiation work through mediation at a significantly lower cost. A lawyer can be retained to represent you in court – many lawyers are happy to have their clients work with mediators to resolve the majority, if not all, the issues outside of court. In family law matters, there is always a meaningful role for consulting independent legal advice. It is best for the parties to get any needed legal advice from their own separate lawyers before and/or during mediation.

The mediator is impartial while a Divorce Lawyer represents only one side in the dispute.

 What if a plan cannot be reached?

Even if one party is skeptical, you may be able to reach agreement on some of the issues. Even if you cannot resolve all issues through facilitated negotiations, OBM can write up a 'Partial Agreement'. You can then agree to re-try mediation after seeking legal advice or apply to court to assist you.

By avoiding the costs involved in litigation, the amount of money saved will be enormous. Litigation can go on and on, and the outcome can be somewhat of an unknown. Mediation costs will be a fraction of the cost of a court hearing with lawyers litigating the case.

What are the financial advantages of mediation over litigation?

If you chose to go down the legal path, you most commonly have two separate lawyers to handle all your negotiations. Litigious approaches can include costly procedural actions like filing declarations and motions, depositions, discovery and countless back-and-forth communications between lawyers. Mediation is very straightforward. The agreement that emerges from mediation can easily be drafting into consent orders or incorporated as part of a court order.

Is the mediation session confidential?

Under the Family Law Act 1975 there are confidentiality provisions, if the matter goes to court, like divorce litigation. Mediation is also confidential, and discussions are ‘without prejudice’ meaning what is said in the sessions cannot be used as evidence with the exception of:

  • if a party makes threats to commit a criminal offense
  • information regarding commission of a crime comes to light
  • there’s information regarding risk to a child

Olive Branch Mediation is required by the Regulations to report in the above circumstance.

 Is mediation always successful?

The rates of success for mediation are better than those for litigation. This is partly because in mediation both parties ‘win’, whereas in litigation only one party, or no party ‘wins’ because the judge is now in control and makes the decisions when you cannot agree. Success in mediation does require that both parties negotiate in good faith and want to resolve matters. For example, if one party would rather spend their money ‘punishing’ an ex-spouse than keeping it in the family or for the benefit of the children, then mediation may not succeed.

If the parties have unrealistic expectations and each is convinced that the judge will see everything as that party sees it, they may both need to experience one or two court hearings before they are ready to negotiate in earnest. Such exposure can often teach people that there is no guaranteed fairness or justice in family court to suit their agenda or purpose.

Most importantly, Olive Branch Mediation empowers you to maintain control over the process.


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