Frequently Asked Questions
Why should I attend mediation?
The mediation process enables parties in dispute to come together in a neutral venue to explore the resolution of their issues, rather than engage in an expensive Court process. Mediation is a confidential, flexible process and can be arranged at a time and place suitable to all parties. The mediation process involves parties to a dispute hearing each other’s positions in a non-threatening manner. Through this process parties are able to consider options raised and negotiate outcomes, without pressure to settle.
The parties in a mediation own the process and the outcome, whereas the Court controls the litigation pathway and the outcome of the litigation. Litigation can contribute to parties experiencing emotional and physical health issues, and lengthy delays. Relationships between parties may continue to be strained while litigation is underway. This can impact on others, especially children. Mediation is focused on enabling parties to maintain relationships post mediation. It enables parties to move on with their lives with certainty and in a cost effective way.
What happens at a mediation?
Prior to a mediation Penny will meet with the parties separately in an intake session. The parties and any lawyers will then meet together and Penny will explain the mediation process. In cases where a party is not comfortable meeting with the other party in the same room, the mediation can take place in separate rooms.
The parties will then be given the opportunity to explain their issues of concern without interruption and without verbal abuse or intimidating behaviour. Through the mediation process, Penny will identify issues in dispute after consultation with all parties. These issues are then explored in turn with Penny assisting the parties to generate options for agreement. Penny’s role as mediator is not to convince parties that their position is correct and should be accepted. Penny may meet with the parties separately in private, confidential sessions.
If an agreement is reached, heads of agreement or Consent Orders can be prepared or the lawyers will prepare these agreements after the mediation takes place.
Where will the mediation take place?
The mediation will take place at an agreed venue, where the parties feel most comfortable. Parties might agree on the mediation taking place at one of the lawyer’s offices, or may prefer a neutral venue such as Accord Mediation’s rooms.
Click here, to see the location of Accord Mediation’s rooms in Toowoomba.
In other towns mediation rooms are available at reasonable rates. The parties generally pay these fees equally. For parties living remotely, Penny can arrange for the parties to connect to the mediation by telephone or Skype. The parties pay the phone charges.
How long will the mediation take?
The length of the mediation will be based on the number of issues in dispute. Generally mediations will take a full working day. You should plan to take a full day off work and ensure you have no commitments on the day of the mediation. You should also make arrangements for child care and for full day car parking.
How can I prepare for a mediation?
It is important for you to be emotionally prepared for the mediation. You may consider seeking assistance from a counsellor or support person to prepare you emotionally for the mediation. Your mindset should be open to considering a range of outcomes and to negotiating and compromising. Parties who attend mediation with a fixed position and who are not prepared to negotiate or compromise, can expect that the mediation is unlikely to succeed. Consider if your proposals are realistic. Can you afford to make the offers you propose? Are they realistic given your employment position and other commitments?
You need to ensure before the mediation takes place, that you have made full disclosure to the other party or their lawyer and to Penny, of all relevant documentation and issues. The prospect of a successful mediation reduces, if full disclosure is not made. The documents to be provided at the mediation will vary on the type of mediation. Penny should receive an outline of the history of the issues in dispute, your proposals in respect of those issues, and any Court documents, agreements and contracts. In property settlement mediations, Penny should receive a list of the assets and liabilities, and the valuations. Depending on the information received, Penny may request additional information.
Who can I bring to the mediation?
Lawyers are welcome and encouraged to attend mediations. Penny cannot provide the parties with legal advice in her role as an independent mediator. Support persons are welcome to support parties in separate rooms, by agreement of all parties. Only the parties and their lawyers come together in the mediation room, unless all parties agree on other people being present. Any support persons attending the mediation are bound by the same confidentiality provisions as the parties to the mediation and Penny as the mediator.
Do I have to be in the same room as the other party at the mediation?
It is important for you to tell Penny before the mediation, of any concerns you may have about being in the same room as the other party. Penny appreciates that the mediation process can be stressful for all parties. She has extensive training and experience in the impact of domestic and family violence on parties. If you feel uncomfortable before or during the mediation, arrangements can be made for the mediation to take place in separate rooms. It is usual to feel emotional at the mediation. While it is important that you feel as comfortable as possible during the mediation, you can expect some challenges to your position during negotiations in the mediation.
Penny’s role is to address any power imbalances, and to enhance the ability of parties to negotiate without feeling any form of intimidation. This may involve Penny exploring issues and options with parties in private sessions, where you can speak freely with Penny. All discussions in private sessions are confidential, unless you give permission to Penny to relay any information provided in private session to the other party. You will be under no obligation to accept the other party’s position. The mediation can be terminated or adjourned at any time.
What happens if the other party doesn’t want to attend mediation?
Some parties are required by law to attend mediation by order of a Court or under the terms of an agreement. Mediation may be a pre requisite before commencing court proceedings. You can obtain legal advice on these obligations.
If a parent does not wish to attend a mediation involving children, certain steps are required by law to be taken, inviting that party to participate in the mediation. This is referred to below under Can you provide me with a Section 60 I Certificate?
What are parenting matters?
Parenting matters is a term given to disputes regarding children. These disputes may involve where children will live, and what time the children will spend with each parent and significant other persons in their lives, such as close family members.
What is a family dispute resolution (FDR)?
With matters involving children, the law requires parties to attempt mediation, before filing Court applications. Mediations involving children are known as family dispute resolutions. They can only be conducted by mediators accredited by the Attorney General’s Department. Penny is an accredited family dispute resolution practitioner in respect of children’s matters.
There are a number of documents which are required to be provided to parties participating in family dispute resolutions. Click here to view these documents.
Can you provide me with a Section 60 I Certificate?
Penny is accredited to issue Section 60 I Certificates. Click here to view this Certificate. The Court considers these Certificates to decide whether or not to refer the parties back for further family dispute resolution, and whether or not to make a cost order against either or both parties. The Certificate will show whether or not the parties made a genuine effort to resolve their disputes through family dispute resolution.
In parenting matters involving children, if one party does not agree to participate in a family dispute resolution, Penny is accredited to invite the other party to the family dispute resolution. If the other party refuses to attend the family dispute resolution after Penny makes two contacts with the other party, she can issue a Section 60 I Certificate.
There are some circumstances where Penny may decide that it is inappropriate to invite a party to family dispute resolution. This is usually in cases involving domestic violence and power imbalances. The circumstances which Penny must take into account in these cases, are set out in sub regulation 25(2). Click here to view this sub regulation.
Do I have to have a lawyer present at the mediation?
There is no obligation on you to be legally represented at the mediation. However, it is strongly recommended. While Penny can provide you with information, she cannot provide you with legal advice. While the engagement of a lawyer at a mediation is an added expense, it is money well spent. The assistance of a lawyer at a successful mediation, can save you the significant cost of litigation.
If we reach an agreement, is this agreement binding at law?
Depending on the agreement reached, the agreement may or may not be binding. Heads of Agreement summarise the terms of the agreement reached at the mediation. The Heads of Agreement can then be prepared by the lawyers as Consent Orders, Financial Agreements or Parenting Plans in family law matters. You should seek legal advice to ensure that any signed agreement is a binding document. You will not be obliged to sign any agreement reached if you do not feel comfortable doing so, and if you have not received legal advice prior to signing the agreement.
How much will the mediation cost and how can I engage the services of Accord Mediation?
How do I book a mediation?
You are welcome to contact Penny directly. Her contact details can be found by clicking here. Alternately you can view Penny’s availability here and make an appointment request via the booking form on the calendar page. Once you have chosen a date when Penny and all parties and lawyers are available, click on that date and time. You will then need to complete the details in the form which will appear after you have clicked on the available date and time marked in green. After you have completed the form, submit your appointment booking request. You will then receive an email confirming your request. Penny will then make contact with you to confirm and clarify the mediation details.
What do I do if I have other questions about the mediation process?
Feel free to contact Penny if you have any concerns about the mediation process, or any associated questions. Penny is happy to assist you to ensure the best possible outcome for the mediation.