This research paper represents the first attempt in over twenty years to assess some of the basic issues of judicial administration that arise in court use of mediation. The findings support the statement that cases that are mediated settle more frequently than do cases which make use of traditional litigation. In addition, the statement that mediated disputes result in higher rates of compliance and implementation is also supported by the research paper. While more mediation investigation is needed, Tyler and Bornstein’s research paper provided some of the cross-sectional empirical examination very much needed in the field.
Mediation under Compulsion It was a first expectation that the public would go in large numbers to mediation as an alternative to litigation. This has been mistaken thought. In Australian culture it is much easier to spend time in litigation than to sit down with an opposing party and examine the issues. The Supreme Court of Victoria has recognised this and has ordered a proceeding to mediation (with or without the consent of the parties). Making mediation a process undertaken by free choice would not have overcome party fears and lawyer doubts.
Without compulsion, mediation would have lost strength as an alternative to litigation. Negotiation Mediation, like litigation, is nowadays a standard procedure of the Australian court system. There is an obvious duty on lawyers to counsel the parties appropriately about mediation. However, a discussion that is beginning to rise is whether a professional duty arises for the legal practitioner once the mediation process starts, in particular in terms of their negotiating practices. The courts are already beginning to define what is meant by proper negotiation.
It is probable that courts will define in the near future what are unprofessional negotiating practices by lawyers both in and outside the mediation process. Mediation services are intended to help separating or divorcing couples to resolve disputes associated with child custody and access, living agreements, satisfying the demand for property and spouse and child provision after a divorce. Mediators can be men and women who have family law or family and relationship advising experience.
Typically, separating or divorcing couples are present at two to four sittings of one-and-a-half to two hour's duration. The Family Court of Australia has proposed alternative dispute resolution in the form of services which help the parties in a dispute to reach agreement. Registrars and Court Counsellors are assigned to give help to parties in resolving their disputes over property distribution, access and custody themselves rather than having verdicts reached by the Judge.
According to the coordinators of mediation services now in action, the whole proceedings in divorce mediation include: 1) pre-mediation examination and provision of required information or referral to other services offered by professionals to help clients resolve problems if appropriate; 2) considering and making clear matters of concern and areas of settlement and dispute; 3) examining carefully the personal needs and resources of each party; 4) and elaborating plans which meet everyone's needs as absolutely as possible.
The mediator examines and determines the issues involved in power imbalances by pointing out areas where each partner is knowledgeable. For instance, while the woman may know more about the children and running the household, the man may have more knowledge about business. Either partner may be stimulated to learn more about his or her legal rights and ability to make decisions, and financial resources (the price of property, for instance, or the amount paid for children's clothes).
The mediator may require this information to be brought to the mediation session. An agreement to mediate is in most cases signed by both parties. The parties also share the amount paid for the mediator. A favourable outcome for mediation is usually an official agreement between the clients, prepared by the mediator and signed by the clients. After this, the agreement can be used as a basis for a legal procedure.
The agreements are usually quite detailed and smooth the wheels of justice. The Victorian Supreme Court stresses that the text should be clear and easily understood by all clients. Mediation projects designed to help separating or divorcing couples currently operating in the Australian legal system have not yet presented the findings of any long-term evaluations of their services.
Foreign research on the effectiveness of court ordered couple mediation has generally found it to be an effective and advantageous approach for resolving disputes outside the litigation process. Advantages resulting from successful court ordered mediation reported in the literature include the preventing from financial and emotional costs of litigation, a chance to develop or support a positive parental relationship, and an opinion that agreements are practicable and fair according to the circumstances.
