A mediator is a neutral facilitator who helps parties to ascertain the issues in dispute and work towards a resolution. It can also be an opportunity for parties to raise issues that may not be strictly relevant in Court proceedings but which may be significant for the parties.
Mediation is called an “alternative dispute resolution process” because it is an alternative to going to Court. However, mediations also occur during the court process in an effort to resolve the matter without further court intervention and often mediation is ordered by the Court.
If you are mediating about children’s matters, it is best to make sure the mediator is qualified to issue a Family Dispute Resolution Certificate, more commonly known as a Section 60I Certificate. This means that if your mediation is unsuccessful and you need your matter decided by the Court, you already have proof that you have attempted family dispute resolution to satisfy the Court’s requirements.
On the day of the mediation, or prior to that day, both parties will speak to the mediator separately to present their cases and proposals. The mediator will use this information to help guide the discussions and address the issues that are important to the parties. The mediator can assist the parties to workshop possible outcomes and make recommendations about possible solutions to matters in dispute, but the mediator’s role is not to decide the outcome for the parties like a judge. If the parties reach an agreement, it can be drafted into heads of agreement or terms of settlement for both parties to sign. Any agreement or terms decided on at mediation can be later drafted into a formal document and made legally binding, either by way of Consent Orders filed with the Court or as a Binding Financial or Child Support Agreement. Until the agreement is formalized, it is not legally binding.
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Collaborative law offers an alternative method of resolving the issues that arise from the breakdown of a domestic relationship. Collaborative law offers a solution that is tailored to your individual circumstances.
Negotiation involves exploring what is most important to each party and trying to reach a resolution that both parties would be willing to settle with and that meets the best interests of the children. You may gain in some aspects but make concessions in other aspects in order to reach a successful resolution.
Through this process of negotiating the various issues that are important to the parties, and consideration of the various needs of the children, the parties may reach agreement.
Negotiation often occurs in conjunction with the other processes described below.
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