

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.
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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.
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Finding a Contextual Definition for Mediation
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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.
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• 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.
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• 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.
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• 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.
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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.
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What Are the Main Advantages of Mediation?
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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.
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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.
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Other benefits of mediation typically include:
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• Greater emphasis placed on party interests as opposed to their legal rights alone
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• The formation of lasting agreements as each party is heavily invested in the outcome
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• A high degree of control among participants and scope for non-monetary remedies
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• Cost-effectiveness as the mediated process is considered both quick and confidential
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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.
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However, the whole point of undergoing mediation is so that it never comes to that.
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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