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Mediation and Conciliation

We think that mediation and conciliation are both excellent ways to promote efficient and cost-effective resolution of family law matters. There are a couple of considerations that can make a big difference to mediation or conciliation success rates and it can be helpful to have a good understanding of these.

The difference between mediation and conciliation is the qualifications of the mediator (or conciliator). A conciliator is an expert in the field at issue. Where a mediator’s main function is to promote communication (and an understanding in each party of the other party’s viewpoint) and compromise, a conciliator will perform a similar function in the context of their knowledge of family law (in this case), legal principles and what might constitute a realistic and reliable outcome (see Gaining a Good Understanding of the System).

The success rate of mediation or conciliation can be greatly improved by understanding what factors cause most failures and taking steps to limit those factors.

Of those mediations or conciliations that fail, most do so because of improper preparation. If a party begins the conference by saying "my solicitor thinks I should get about sixty percent of combined net assets but I don't know how much super the other party has and I don't know what the business is worth", the conference is more-or-less doomed to failure (unless that party makes decisions without having important information – which is likely to mean that the result will be less than fair and probably unreliable).

To maximise the prospects of successful mediation or conciliation, both parties should have received advice about how family law operates and both parties should have received information from each other about all relevant financial circumstances before the conciliation process starts.

The other important factor that tends to cause failure of mediation or conciliation is irrelevance. Mediation or conciliation conferences tend to be limited in time. If much of that time is taken up in discussion about issues that are not really relevant to the overall result – minor matters like things that might have caused upset in the past – the conference is much less likely to be successful. As a general guideline, discussion of anything that has not been included in a solicitor’s advice as likely to make a significant difference is probably not a good use of a mediator's time.

Steve Lamont holds (level 3) mediation and conciliation qualifications recognised by the Law Society of NSW and strongly advocates the use of mediation and conciliation principles in family law.