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June 7, 2016
Why More Australians are Opting for Mediation as an ADR

Going through a divorce is an emotionally draining experience for everyone involved and sadly, one that occurs all too often. Confronting the reality of a life apart brings many conflicting feelings to the surface — so many that it may seem as though an amicable solution will always be out of reach.

In situations like these, spouses should consider pursuing forms of Alternative Dispute Resolution (ADR) such as mediation. Mediation is a voluntary process commonly used in civil cases in which a neutral third-party or mediator is brought to the table and helps participants reconcile their differences.

Finding a Contextual Definition for Mediation

Before delving into the benefits of mediation, it is useful to explain in what ways the process differs from other ADRs like negotiation, conciliation and arbitration.

Mediation v. Negotiation: In negotiation, the parties themselves must create a process through which they can communicate. In mediation, this process is facilitated by a neutral third-party.

Mediation v. Conciliation: During conciliation, the third-party or conciliator is not necessarily neutral and may need to ensure that settlement terms are compatible with relevant legislation, else actively introduce a number of settlement options for the participants to consider.

Mediation v. Arbitration: In arbitration, participants must consent to the intervention of a neutral third-party and agree to accept his/her judgment in writing beforehand.

These processes fall into a broader array of conflict management options — preventative, collaborative, facilitating, advisory or mandatory — which have gained acceptance as standardised approaches to resolving disputes in civil arena.

What Are the Main Advantages of Mediation?

Nowadays, mediation is at the forefront of cases involving the breakdown of a marriage and for good reason; it affords separating couples the opportunity to reestablish the lines of dialogue that are often severed when the dispute escalates.

The biggest argument for pursuing mediation over more formal legal proceedings like litigation or adjudication is that the mediator cannot impose a settlement. This gives both sides equal opportunity to discuss their grievances in full and the best chance at coming to a mutually beneficial and amicable solution.

Other benefits of mediation typically include:

• Greater emphasis placed on party interests as opposed to their legal rights alone

• The formation of lasting agreements as each party is heavily invested in the outcome

• A high degree of control among participants and scope for non-monetary remedies

• Cost-effectiveness as the mediated process is considered both quick and confidential

Of course, if a workable solution cannot be found through mediation, or if the resolution is not adhered to in good faith by the participants, recourse to the Courts and a judge will be necessary.

However, the whole point of undergoing mediation is so that it never comes to that.

If you have any questions or concerns about your options when separating and would like to make an appointment, contact Sue Holgate, Partner at LBH on sholgate@lbandh.com.au