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
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
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