Negotiating the best for everyone - Part 2

July 29, 2013 at 3:59 PM

Mediation useful for settling disputes

This is the second of five articles on managing the legal side of separation published in The Press. 3 April 2007

When separated couples are in dispute, they should consider mediation as a means to settle their differences. Mediation has proved to be very effective in resolving family law cases.

Put simply, mediation is negotiation between parties, facilitated by an impartial person, the mediator.

Family Court judges run mediation conferences at the courthouse, but they are usually constrained by time and other limitations. While judge-led mediation has its place, mediation is usually more effective if done by specifically trained private mediators. It is the latter type of mediation that is discussed in this article.

Here are some frequently asked questions about mediation:

Can I bring my lawyer and new partner? Yes, provided your former partner agrees. If he/she does not initially agree, the mediator can help resolve the issue.

Do I have to bring a lawyer? No, but it may be sensible, partly for support and partly for advice about legal issues which may arise.

Does the mediator make the decisions? No, the mediator's role is to guide the discussion.

Can I be forced into a settlement? No, the process is voluntary from beginning to end.

Will the mediator make recommendations? Sometimes, but usually only as a last resort. The mediator will usually avoid giving you any advice.

How much will it cost? There is at least one scheme running in Christchurch (''lawyer to assist'' mediation) that is free. If the parties pay for a mediator, the cost is usually evenly split. The important thing is to compare the cost of mediation with the alternative of going to court. By spending $500-$1500 on a mediation you can save much more than that in lawyers' fees. Going to the Family Court typically costs $5000-$25,000, and sometimes a lot more.

Is legal aid available for mediation? Yes, in 2006 Parliament passed legislation to cover that.

How long does the mediation last? Typically, three to six hours.

How do I choose mediator? Your lawyer can advise you, but the mediator should be accredited by either AMINZ, or LEADR, whose websites lend assistance in choosing a mediator.

Is a settlement reached at mediation binding and enforceable? Yes, it is like any other formal contract entered into by parties.

What if no settlement is reached? You still have all the rights and remedies you had before the mediation, and so you are not worse off. Even if no settlement is reached, there are often resulting benefits, such as the clarification of facts and issues and the re-establishment of communication.

I'm feeling pessimistic, so what are the chances of my case settling at mediation? Typically, many parties to mediation are initially pessimistic about the outcome, but despite that, most cases do settle. Mediation has a settlement rate of around 80 per cent.

Category: Family Disputes