A Lawyer-assisted Mediation is a voluntary process where people who have separated choose to participate in a respectful and meaningful way to resolve all parenting, financial and property issues that arise from the end of their marriage or intimate relationship.
A lawyer-assisted mediation or legally assisted mediation involves the separated people, with their lawyers and an independent Mediator who facilitates the mediation.
A lawyer-assisted mediation is safe and confidential and has a very high success rate of resolving all the issues in dispute for people.
On average 80-85% of people resolve their issues at a lawyer-assisted mediation.
Why not litigate instead of lawyer-assisted mediation?
The first impulse, for many separated people is to fight their dispute straight in court, with the hope that they will “win” and the other party with “lose”.
If you are considering the litigation pathway, consider the following:
- How will I feel financially and emotional going through the court process?
- Will I be heard?
- Will I have greater support in negotiating a successful outcome?
- Will I have control over the situation and outcome?
Unfortunately, fighting your family law dispute in Court will inevitably strip your decision-making powers and you will not have control of the situation or outcome. The decision will be up to the Judge.
There is a far more effective and meaningful way to resolve your dispute between you and your ex-spouse or partner.
In fact, going to court is not the first option that you should gravitate towards to resolve your family dispute, nor is it what we believe to be the best form of dispute resolution.
In this article we will outline the benefits of Lawyer Assisted Mediation as form of Alternative Dispute Resolution (“ADR”) and provide an essential guide on what to expect and how to be prepared for a Lawyer Assisted Mediation.
What is Lawyer Assisted Mediation?
Lawyer Assisted Mediation requires each person to bring and be represented by their respective family lawyers to assist in facilitating the negotiations at the mediation.
The Lawyer Assisted Mediation is not conducted or facilitated by the lawyers, but by either a qualified Family Dispute Resolution Practitioner (FDRP), or, and accredited family law mediator.
The process adopts the same principles of voluntariness, informality, confidentiality, and neutrality (i.e. fairness).
The process is quite flexible, and you and your ex-spouse are able to nominate the mediator who you would like to conduct the mediation
The role of the mediator is to remain neutral and impartial and allow the parties the time to discuss the terms of their own agenda. The mediator will help in coming up with ways to resolve the dispute but will not dictate the outcome. The mediator will also encourage and give you and your ex-spouse a reality check so that you can both decide how to come to a mutual agreement that works for you both.
The role of your lawyer is to negotiate or advocate on your behalf and to assist you in formulating proposals and tailored solutions that work for both parties.
They may raise proposals that may have never even considered, which inevitably may suit your situation. Most importantly, your lawyer is there to support and provide you with tailored legal advice during the mediation process.
Pros and Cons of Lawyer Assisted Mediation
A Lawyer Assisted Mediation has many pros, such as:
- The forum is confidential and private. That is, the only people who will hear of the issues that are raised in the mediation is the parties, their respective lawyers, and the mediator. Whereas, taking your matter to court, your private affairs between your ex-spouse is aired in a public forum following the judge making judgment on your matter.
- It is a cost-effective way of resolving disputes that have arisen from the breakdown of a marriage or de facto relationship.
- The mediator is a neutral third party who provides non-judgmental support.
- You and your ex-spouse choose the issues and/or concerns you want to raise in the mediation. That is, you and your ex-spouse will be able to control the process and outcome, rather than being shocked and surprised by the decision of the judge in Court.
- The mediator will spend private equal time with each party to discuss their issues and concerns, in order to understand where each party is coming from.
- The process, although may be stressful, it is less stressful than the court process.
- The process is quicker than the court process which can take up to a couple of years to be finalised.
- For parenting matters, it assists parents to come to a mutual agreement relating to the co-parenting arrangements relating to their child/ren.
- For property matter, it assists the parties to come to a mutual agreement as to the division of assets.
- It avoids a win/lose decision.
- It is available at the early stages of your matter.
Notwithstanding that there are indeed many pros to Lawyer Assisted Mediation, there are also some drawbacks that you cannot forget.
- There is no guarantee of the outcome and there is no final decision maker.
- Although the mediator may have an inkling of what the outcome should be, they cannot compel or force you or your ex-spouse to settle or participate (unless ordered by the Court to participate).
- It is up to you and your ex-spouse to work together and co-operate with one another to finalise your issues at hand.
- There may be a time where you feel like it is a pointless exercise if the other party is entrenched in a position of “I’m right and you’re wrong” mentality, and therefore refuses to negotiate.
- It may take several mediations for you and your spouse to reach an agreement.
As you can see, there are some cons to lawyer assisted mediation, however these are outweighed by the pros.
Is Lawyer Assisted Mediation Useful for my Matter?
Generally speaking, Lawyer Assisted Mediation is commonly used in matters where the issues in dispute are complex, such as, child relocation matters, the arrangements a child spends with each parent, or, property disputes where parties are arguing as to the division of assets.
Lawyer Assisted Mediation can help narrow these issues.
CFL Guide in Supporting you at your Lawyer Assisted Mediation
At Cominos Family Lawyers, we pride ourselves to transform the way people experience divorce and separation, and we believe that it does not have to be a bitter and nasty process.
To ensure your Lawyer Assisted Mediation is successful, our trained specialist family lawyers follow a specific approach, tailored to your matter, so that you are prepared and not blindsided at the mediation.
We believe that Respect is priority and an essential step in building and maintaining positive relationship and rapport between all individuals involved in the process.
We listen to you and understand that you are seeking our assistance and guidance, and we provide this with care and concern. At the same time, we also know that all individuals want to be respected and heard. We give everyone an opportunity to be heard and we respect every individuals view points ( we do not necessarily agree with all view points).
Separating the individual from the issues
We separate the individual from the issues, and we believe that it is important to always communicate in a respectful manner, not only towards you, but towards the other party. Taking an aggressive approach does not serve either party any interest in mediation. We consider both parties’ issues, concerns, and fears, which we are then able to offer solutions and/or proposals that address the concerns of all parties involved.
Identifying Interests, Needs, Wants and Concerns
At Cominos Family Lawyers, we sit down with you and identify your interests, needs wants and concerns, and brainstorm with you the potential outcomes and offer solutions that will address those interests, needs, wants and concerns.
We also address the interests, needs, wants and concerns of your ex-spouse. Now I know what you’re thinking, “why should we care?”. Well, put simply, addressing the interests, needs, wants and concerns of your ex-spouse will show a genuine interest in understanding the matter as a whole, and understand the perspectives of both parties.
It also allows you to step into the shoes of the other party and consider their view point ( without necessarily agreeing to it).
Finding a Common Goal
Holding a fixed view or position does serve anybody.
Accordingly, identifying the interests, needs, wants and concerns of your ex-spouse will also assist you both in creating and finding common goals.
In a parenting matter for example, it may be the case that both you and your spouse have a common goal of wanting to be recognised as the parent, as well as wanting the best care arrangements for your child/ren.
In property matters, both you and your spouse may have a common goal that you both want to make a fair split of the assets, leaving you both with financial security.
Proposals and Bargaining to Come to an Agreement
Once the interests, needs, wants and concerns of both you and your spouse have been taken into consideration, and it is acknowledged that you both have common goals, this will assist in generating and offering proposals that will serve both parties respective interests.
Are you prepared to make concessions?
It is also important to consider, what concessions you are willing to make. For example, when you are negotiating, you should consider what issues are you willingly prepared to compromise on, or are you prepared to give in to the something that your ex-spouse wants, so that the outcome can be a win/win situation for both parties.
For example, it may the case in a parenting matter, that you are willing to attend a parenting course if your ex-spouse also attends. This will show both parties that they are prepared to do whatever it takes, within reason, to resolve the matter as amicably as possible.
As you may tell, bargaining and making concessions in Lawyer Assisted Mediation is an essential tool to negotiating a successful outcome.
“You give, they take, They give, you take”
What happens if the Mediation Falls (not Fails)?
This is probably one the most common questions we receive by clients. So, if this is one of your concerns, rest assured, you are not alone.
If mediation falls, the best thing to do is to leave the Mediation with a positive mindset and consider the following:
- Try and workout why the mediation was not successful. For example, was there too many emotions involved? Was there too much conflict or were you and your spouse too far apart in your goals?
- Re-evaluate the interests, needs, wants and concerns of yourself and your ex-spouse.
- In another attempt, you can further negotiate and bargain with your ex-spouse until you both come to a mutual agreement.
No matter the outcome of the Mediation, if you leave on a positive note, then you will have a greater opportunity to continue negotiating with your ex-spouse with respect to all of the issues or concerns in dispute.
Tip: Do not be afraid if the mediation falls. You are not to blame and there is always the opportunity to have another attempt. Most of all, take note of the positives and do not give up on the process.
Although you might feel that going to court is your only solution to resolve your dispute, you must always make a genuine effort to reach an agreement with your ex-spouse when it comes to your parenting or property matters. Going to Court should be considered as a last resort.
If you need assistance in preparing for a Lawyer Assisted Mediation, contact us today.
Call us on 02 8999 1800 and mention this article to receive a 15-minute complimentary call with one of our trusted family law specialists.
The information provided here is general legal information. It is not legal advice.