In practical terms, litigation is an adversarial process of resolving disputes in court with regard to divorce. From another perspective, mediation is not like litigation which is based on a judicial and adversarial process.
Mediation, on the other hand, is a form of alternative dispute resolution which is voluntary, informal, and flexible. Strictly speaking, you do not require legal representation prior to mediation and throughout the mediation process.
However, it is strongly recommended that you consult a lawyer who supports mediation. He should be familiar with the mediation process in order to advise you on the right moves and actions with regard to your mediation.
The importance of Brisbane mediation lawyer is in the fact that it focuses on the needs and interests of both parties and can be enforced in the litigation process. It listens to
Mediation focuses on the needs and interests of the parties as opposed to legal positions and enforceable rights in a litigation process. In mediation, parties are encouraged to negotiate and mutually arrive at an acceptable solution for the resolution of the dispute.
On agreement, there can be no further litigation of the matter. Mediation is a dispute resolution method that can save time and legal costs.
Advantages and benefits
One big advantage of mediation is the guarantee of confidentiality. This means that all disclosures, concessions, admissions and communications in the mediation process are strict “without prejudice”.
This means they are not to be shared with anybody and will remain known only to the parties and the mediator.
This “without prejudice” privilege cannot be referred to or used against them subsequently if the settlement between the parties cannot be achieved. This privilege, however, can be waived where both parties consent to the waiver.
Basically, the mediator’s role is to facilitate and find a solution for both the disputing parties. In a successful mediation, the decision is made by the parties and the terms for the solution are often recorded in the form of a settlement agreement, signed and agreed to by the parties.
This is way very different from litigation. In litigation, the judge is the decision-maker and the parties are both bound by the judgment. The terms of the settlement agreement are binding and enforceable. The defaulting party can be sued should he breach the settlement agreement.
In many ways, parties are more likely to accept and comply with the settlement agreement because mediation focuses on and addresses the needs and interests of both parties. The dispute is more effectively resolved by way of mediation than litigation.
Moreover, mediation is more favorable to parties who wish to preserve family or business relationships.
Getting yourself a lawyer for the mediation is to simply ensure that you have an effective mediation. You can do this before the mediation process in order to discuss your rights and responsibilities.
This is also important the guard you against any legal consequences of possible settlement terms that may be derived from the mediation process.
In addition, having a lawyer with you during the mediation sessions is very important as you may want to consult your lawyer on settlement terms. Likewise, you will have your lawyer review the settlement agreement before you sign it.
It is highly recommended that you seek legal advice to find out your rights and responsibilities before the start of the mediation, and afterward as well as before you should sign the settlement agreement. (This is why you need a lawyer with your before, during, and after the mediation procedure.)
First, the parties may choose and jointly appoint a mediator from a list of certified mediators. (Parties can choose an additional mediator if there is a need.)
After the mediator’s appointment, the parties are required to attend a pre-mediation conference. Here the mediator will meet with the parties (for the first time) and explain the mediation process and to disclose potential or actual conflicts of interest.
The parties are requested to provide a summary of facts and relevant documents and submitted to the mediator. At the end of the pre-mediation conference, the parties are required to sign an agreement to mediate.
During the start of the mediation, there will be an introduction by the mediator and an explanation of the nature and process of mediation. The mediator will need to confirm that the parties present at the mediation have the authority to enter into a settlement. This is important when the disputing parties are companies or organizations.
The mediator will also impose certain ground rules to be followed by the parties throughout the mediation process. One such rule is that parties are encouraged to speak and address each other with courtesy and only one person is allowed to speak at a time.
In this session, the mediator will identify the issues at hand and acknowledge the concerns, needs, and interests of each of the parties.
After the first session, each party will have a private session with the mediator to discuss on confidential and sensitive issues regarding the dispute. To ensure fairness, parties are given equal time and opportunity with the mediator in each private session.
After the private session, the mediator will assist and facilitate the parties to solve their disputes amicably and effectively.
In the event parties are able to resolve their disputes, the mediator will advise parties to enter into a settlement agreement, where detailed terms for settlement shall be subject to the next discussions.
If mediation is unsuccessful between parties, the mediation can be dismissed by the mediator. Here the parties have the option to resolve their dispute by way of litigation.
In the event of a successful mediation, the mediation is recorded in writing by way of the settlement agreement. This settlement agreement will bind both parties upon signing and is not subject to further appeal. (This is the reason why it is advisable to propose viable, achievable, and practical terms of the settlement.)
When to mediate
It is always recommended that to mediate to resolve any dispute should be done as early as possible. This is to reduce litigation costs and expenses and to increase the chances of the dispute being resolved.
Litigation is always adversarial and breakdowns in communications can be compromising to both parties at the end of litigation. Early mediation may help save and repair the relationship of the disputing parties or might open to a more amicable parting of ways.