What is mediation? What’s the difference between a lawyer and a mediator, and which is best for your situation? This blog explores when to choose mediation and when to engage a family lawyer so you can move towards a family dispute resolution with clarity and confidence.
What’s the difference between a lawyer and a mediator?
Let’s begin with how mediators and lawyers are similar.
A family mediator and a family lawyer both assist the two parties involved in moving out of a complicated dispute and towards a fair resolution.
The main difference between a mediator and a lawyer is that a lawyer advocates for one party, their client. A mediator is a neutral person who advocates for common ground and mutually agreeable conclusions between the two parties.
Another legal term you may come across while researching supreme settlements, dispute settlement centre and mediation meaning is arbitration.
Arbitration vs mediation
An arbitrator (ARB) is a third party member, often a lawyer who has had formal training in arbitration, hired to act as a “private judge” to help resolve a dispute. Arbitrators control the outcome and are given the power to make a final and binding decision. This differs from mediation, where the opposing parties control the outcome.
What are the different types of mediation?
What are the three types of mediators? Transformative, Facilitative and evaluative. Let’s explore these different styles of mediation.
Evaluative mediation is the oldest style of mediation. Evaluative mediation places most of the control over the negotiations in the hands of the mediator. This mediation style is most useful for parties who don’t know what they need from the settlement and require help voicing their needs to the opposing party.
This style of mediation is more common today. The control of the outcome is given to the opposing parties, who most likely understand what they need and are comfortable sharing that with the opposing party. The facilitative mediator is there to encourage collaborative negotiations and will usually refrain from sharing their opinion unless necessary.
This style of mediation is the newest form of settling disputes with a mediator. Transformative mediation works best when there is a balance of power between the two parties, enabling smooth negotiating without needing the mediator to step in. The role of the transformative mediator is to remind the opposing parties of their needs, values and points of view when necessary.
What is a public mediator?
What is the difference between public and private mediators?
The only difference between a private mediator and public is that a public mediator is sometimes funded by the government to provide mediation services at reduced fees, for example, Relationship Australia or Anglicare or legal aid.
7 Benefits of Family mediation
When seeking a family dispute resolution, family mediation offers many benefits over a trial by a judge. Here are seven reasons someone might engage a mediator to assist in a complicated and stressful family dispute.
Mediation saves time by finding a dispute resolution quicker than a trial by a judge.
Mediation is more affordable than preparing and running a trial. Resolving family disputes in a trial by a judge could also mean that after paying expensive legal fees, you could be ordered to pay the legal fees of the opposite party if you are unsuccessful.
- More control:
A mediator can customise the process to your needs, offering both parties more control and flexibility over the outcome compared to the outcomes being forced upon them.
- Less stress:
Mediation is a more informal option when seeking a family dispute resolution than an intimidating trial in family court.
Mediation offers more privacy to resolve family disputes. This means that if you end up going to court, the judge won’t be informed of the contents of the confidential mediation, and it also can’t be used against either party.
- Increased outcome success:
Mediation is a more civil process where both parties decide and agree on the outcome of their family dispute, which leads to more satisfaction from both parties when a resolution has been achieved.
The only way to modify a settlement agreement that has been reached through mediation is when both parties agree. This sense of finality allows both parties to move on and leave behind this difficult period of their lives.
How do you know if you need a lawyer or a family mediator?
Unsure whether you need a family mediator or a family lawyer? Family disputes are more likely to be resolved through a family mediator if they align with the following factors:
- Both parties agree that negotiating and agreeing on an outcome through mediation will better suit their needs than a judge’s decision.
- Both parties want to ensure the dispute remains civil for the health of their relationship and their children.
- The family dispute includes non-monetary factors
- Both parties understand and agree that the negotiated outcome should be based on compromise, not what each party thinks is best.
- Both parties agree that the goal is to achieve a settlement which means negotiating amicably even if they aren’t good friends.
- Both parties are prepared and willing to share all necessary information to secure a satisfactory dispute resolution.
Ultimately, the best situation for engaging a mediator over a lawyer is when both parties share a mutual agreement on the desired outcome. The court prefers disputes over property and parenting to be resolved outside of court with a neutral family mediator in the first instance unless there are exceptions. In contrast, domestic violence and abuse cases should be handled by a lawyer advocating for your rights in court.
When do you need a lawyer?
If both parties can not agree on the six points we listed above, then a family lawyer is necessary to resolve a family dispute. Mediation can still be engaged alongside family lawyers to help the parties talk to each other in a respectful and safe space. However, if one party withholds information, mediation should not take place. This is sometimes the case when one party was in charge of the finances throughout the relationship and withheld information during the divorce settlement.
Have you and your partner separated? Learn what to expect from a consultation process with a family lawyer.
How do I contact a family mediator?
Government-funded services, such as family relationship centres, and independent law firms, offer family mediation services.
Savannah Legal in Perth provides a free 1-hour consultation where you will receive a customised legal plan outlining your options based on your situation, concerns and needs. Our goal is to give you affordable legal advice while finally releasing the burden off your shoulders. Book your free consultation today.