VIC Private mediation

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cinnamon

Well-Known Member
12 October 2020
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2
124
Any experience or advice on private mediation? I would obviously like to settle prior to trial and it was suggested by the other party that a private mediation can be held.
 

Atticus

Well-Known Member
6 February 2019
1,834
265
2,394
Any avenue that can help mediate a resolution outside of court or lawyers is a good one... If the other party is willing you should definitely consider it.... Generally anything said in private mediation is confidential (mandatory reporting around child abuse an exception) can't be used in court.
 

cinnamon

Well-Known Member
12 October 2020
48
2
124
Any avenue that can help mediate a resolution outside of court or lawyers is a good one... If the other party is willing you should definitely consider it.... Generally anything said in private mediation is confidential (mandatory reporting around child abuse an exception) can't be used in court.
Any recommendations on who to use for the private mediation?
 

GlassHalfFull

Well-Known Member
28 August 2018
449
43
714
I think it will depend on the individual needs of the parties... I had FDRS mediation a few months ago and it was a disaster.

The mediator was a bit wishy washy, didn't want to upset or offend anyone, talked too much etc. And we were forced to run the mediation by phone due to covid restrictions (hopefully doesn't apply to you now), which meant it took far longer than normal to get anything done. We spent 45 minutes on the phone initially, then waited nearly an hour for them to speak to the other side, then the mediator came back to us with the other side's proposal which didn't really address anything much in what we had said, and when we asked "Ok, but what about x, y and z?", they didn't really have a clear answer about the other side's position, other than that it wasn't agreed to. I mean, okay, but why wasn't it agreed to? Was there a particular obstacle? The mediator wasn't entirely sure. So that required them to go back yet again to the other side and start all over again with more negotiation and when they finally got back to us, the half day was basically over and all they could do was summarise the other side's position rather than offer any further time to discuss.

In the end, what the other side was prepared to accept/concede wasn't enough for me, so perhaps it was just one of those mediations where the two sides were too far apart to get across the line. But I feel like it was a huge waste of time and money in retrospect. Every case is different and my ex is particularly difficult and selfish and controlling, but I really feel like in cases like that, it HAS to be in person. Our judge who has now ordered (by consent) private mediation for us, after being told that by both sides' representation that our FDRS mediation was a frustrating process by phone, agreed that in many cases, it's necessary to "stare into the whites of each others' eyes", and I tend to agree. If we had the ability to have a conversation, or at least have the ability to interrupt (politely and when appropriate, obviously), a lot of time spent putting forward proposals that were never going to meet the needs/wants of the other side would have been saved. We could have asked pointed questions about what they were prepared to discuss/negotiate, and what was off the table for negotiation, and vice versa. We may not have been able to reach an agreement (and we may still not at this forthcoming mediation), but at least we could get to the crux of the issues more efficiently.

So... there are my thoughts on mediation, such as they are. If you have any control over the booking of mediation, I recommend you think carefully about whether the dynamics of it will be productive for your and the other side's situation and personality. Obviously many factors will be outside of your control (you likely won't get to meet the mediator beforehand), but hopefully you can ask questions about the process before agreeing to it.
 

cinnamon

Well-Known Member
12 October 2020
48
2
124
I think it will depend on the individual needs of the parties... I had FDRS mediation a few months ago and it was a disaster.

The mediator was a bit wishy washy, didn't want to upset or offend anyone, talked too much etc. And we were forced to run the mediation by phone due to covid restrictions (hopefully doesn't apply to you now), which meant it took far longer than normal to get anything done. We spent 45 minutes on the phone initially, then waited nearly an hour for them to speak to the other side, then the mediator came back to us with the other side's proposal which didn't really address anything much in what we had said, and when we asked "Ok, but what about x, y and z?", they didn't really have a clear answer about the other side's position, other than that it wasn't agreed to. I mean, okay, but why wasn't it agreed to? Was there a particular obstacle? The mediator wasn't entirely sure. So that required them to go back yet again to the other side and start all over again with more negotiation and when they finally got back to us, the half day was basically over and all they could do was summarise the other side's position rather than offer any further time to discuss.

In the end, what the other side was prepared to accept/concede wasn't enough for me, so perhaps it was just one of those mediations where the two sides were too far apart to get across the line. But I feel like it was a huge waste of time and money in retrospect. Every case is different and my ex is particularly difficult and selfish and controlling, but I really feel like in cases like that, it HAS to be in person. Our judge who has now ordered (by consent) private mediation for us, after being told that by both sides' representation that our FDRS mediation was a frustrating process by phone, agreed that in many cases, it's necessary to "stare into the whites of each others' eyes", and I tend to agree. If we had the ability to have a conversation, or at least have the ability to interrupt (politely and when appropriate, obviously), a lot of time spent putting forward proposals that were never going to meet the needs/wants of the other side would have been saved. We could have asked pointed questions about what they were prepared to discuss/negotiate, and what was off the table for negotiation, and vice versa. We may not have been able to reach an agreement (and we may still not at this forthcoming mediation), but at least we could get to the crux of the issues more efficiently.

So... there are my thoughts on mediation, such as they are. If you have any control over the booking of mediation, I recommend you think carefully about whether the dynamics of it will be productive for your and the other side's situation and personality. Obviously many factors will be outside of your control (you likely won't get to meet the mediator beforehand), but hopefully you can ask questions about the process before agreeing to it.
Hi there. Sounds like a similar day in court to me. I am self-represented, so the obstacles are clear no what negotiations can look like with a party that has a 180 degree view from my parenting. This is one of the reasons I divorced him. The saving grace is when the OP has a "reasonable" barrister on the day, because they can see through the BS and know their client is going to suffer more consequence if their actions are not stopped. Whether mediation or court, I have made a list ranging in various scales of priorities in which I address accordingly. One topic alone can take up an entire day (frustrating I know), but sometimes you might resolve two/ three out of the 10000000 issues. Keep your expectations low and expect that something is gonna have to give. Our lives are beyond these battles, therefore let go, make another plan, move on and be happy.
 

sammy01

Well-Known Member
27 September 2015
4,775
691
2,894
My advice - Don't bother, it can be costly, stressful and with no promise of a result. So I spent thousands on mediation with my solicitor. The thing took the best part of the day.... the ex had legal aid. We agreed to everything, YAY stress over. Whoopy. Time to relax. NOPE changed her mind aferwards. So even if you go private mediator, you and the ex are unlikey to even be able to agree as to who pays. If you suggest it, I reckon he'll come back with SURE so long as you pay...
This is where having a solicitor is probably worth the effort. One letter. "Without Prejudice Save as to Costs". You make clear your offer (give yourself some wriggle room). So in my case. I made a financial settlement giving her 60% of assets and she agree to 5 a fortnight with the kids... SHe came back. 105% of assets (yup, 105%, not a typo). 4 nights a fortnight as a parenting plan, so not enforceable and she has 'sole parental responsibility'.
But having wasted $$$ on mediaton, and solicitors, I knew the only way to get a result was to push court.... Now we settled prior to court, but it was only because of the pressure applied to get her to cave.
 
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cinnamon

Well-Known Member
12 October 2020
48
2
124
You were generous Sammy, a "reasonable" person would say "f**k YES", but of coarse we are not dealing with reasonable people. Ok, well I will keep you updated on the shenanigans'.