Australian Mediation Process

‘Mediation is a process in which the parties to a dispute, identify the disputed issues, develop and consider alternatives with the intention of reaching an agreement with the aid of a mediator.’Mediation is commonly used in the Australian legal system to resolve disputes. There are many different types of mediation processes currently used in the Australian legal system such as models described by Boule; facilitative, Therapeutic and Evaluative. Other mediation type processes used currently in the Australian legal system are Negotiation, Facilitation, Conciliation, co-mediation, shuttle mediation and arbitration.Both types of mediation processes carry their own strengths and weaknesses. In this essay, my interpretation of mediation type process
will be the models of mediation described by Boule. I will be firstly discussing the uses of mediation in the Australian legal system, secondly describing my chosen type of mediation like process (facilitative mediation) and its current use in the legal system and finally the advantages and disadvantages of its use in the legal system.

‘In Australia and other common law systems mediation emerged first in community dispute resolution services, industrial commissions and other peripheral areas of the formal legal system.’‘Mediation is used to define problems or disputes, to settle disputes, to manage disputes or conflict situations, to negotiate contractual arrangements, to formulate policy and to prevent conflicts’.
It is used to resolve many types of disputes such as commercial, civil and family disputes. It is used by tribunals such as Victorian civil and Administrative tribunal (VCAT) and courts such as Magistrates Court , County Court, Supreme Court, Family and Federal Court of Australia. This is also sometimes referred to as ‘court connected’ mediation. In most of the cases before these tribunals and courts; mediation and mediation type processes have become a mandatory process. For example, the Civil Procedure Act 2010 (Vic) compelled disputants to ensure ‘reasonable steps’ have been taken prior to the commencement of litigation. “The primarily goal is to encourage parties to identify and reach agreement on as many issues as possible to avoid the need for trial, or to reduce its length where a hearing is needed.” This encourages out of court
settlement.

One mediation type process currently used in the Australian legal system is facilitative mediation.
Facilitative mediation is an interest based process of negotiation with the aid of a facilitator who remains neutral but encourages resolution. It is used in community, family, work, organisational, environmental and partnership disputes before the courts and tribunals. In the facilitative mediation emphasis is placed on parties needs and interests. The strengths of facilitative mediation are that it allows parties to maintain relationships, to negotiate and focus on individual/mutual interests. Another advantage of facilitative mediation is that the decision is mutually agreed on which means that parties are more likely to follow the decision made. It allows for party control, self-determination and self-empowerment. ‘Bush argued that a further benefit that the parties derived through direct participation in mediation is education in self-transcendence.’ Parties participating in decision making can empower their belief in the legal system and dispute settlement. The process of facilitative mediation allows parties to have satisfaction in the resolution of the dispute. Finch emphasises the importance of client participation in the facilitative mediation. Therefore, the use of facilitative mediation in the Australian legal system is an effective mediation type
process.

On the other hand, there are some disadvantages of facilitative mediation’s use in the Australian legal system. For example, in the case that no agreement is reached, any sensitive or personal information shared during the process can be used against another individual resulting in more conflict. It also may be that such mediation is not suitable for a certain situation due to parties’ incapability to negotiate or the complexity and seriousness of the dispute. An example of this is the murder of Ms Thomas who was stabbed by her former partner during a mediation hearing in Western Australia in December 2016. In Ms Thomas’s case it was not clear of the type of mediation used to resolve the conflict however this emphasises the need to examine the situation/conflict thoroughly before legal institutions recommend/ refer disputes to any type of mediation. Another disadvantage is that it can be a lengthy process If parties have more than one issue in conflict or solely because they are reluctant to compromise/ negotiate mutual terms. The use of legal representation can also be a disadvantage of facilitative mediation as the parties are no longer discussing issues themselves therefore it can result in lack of self- determination and/ or self-empowerment.

In conclusion, many mediation type processes are widely used in the Australian legal system. One specific mediation type process is the facilitative mediation as discussed in this essay. It is used across a range of different types of disputes and allows for satisfaction by its interest based approach. It also allows for parties to be involved and encourages self empowerment. However in certain instances facilitative mediation can be ineffective as it may be inappropriate for a particular situation.