Mediation Matters-What is mediation all about?
Parties sometimes get confused as to what Mediation is and what we do.
To take the example of a couple with a family law dispute, we initially have a confidential intake with each party.This usually takes one hour and enables us to explain the process, develop some rapport with the party and gain some insight into his or her perspective of the dispute.
If one party approaches us then we will usually have an intake with that party and if we consider the matter suitable for mediation, will invite the other party to also participate in a confidential intake.
If both parties are happy to attend mediation then we will proceed to schedule a four hour mediation, usually but not always on a separate day.
We are neutral and independent.The way that I normally explain "independence" is that I have had no previous connection or association with either party and by "neutrality", that I am not on anyone's team.It is absolutely vital that the mediator retains this independence and neutrality throughout the mediation.
As mediator, I use my experience and skills developed over a long period to help the parties resolve their dispute without needing to go to court for an outcome.If successful then the parties will save substantial legal costs and the stress and delay arising from court proceedings.The parties also have a better chance of being able to communicate in the future if they can keep their dispute out of court.
The mediation usually goes for four hours, however if the parties feel they are making progress then they can extend the time.
Usually the mediation is conducted by a single mediator, however we recommend a co-mediation model in some circumstances.Some of our mediators come from a legal background and some from a social science background and each has particular skills and training which they can bring to the mediation.We also offer a child-inclusive model and this is an option that parties sometimes want to explore particularly with older children.
We are happy to explain all our processes in detail so that parties come to the table with a good understanding of what is involved and how we will conduct the mediation.
Our job as mediators is to help the parties reach a resolution.We are not "pretend judges" and it is not our role to make decisions for the parties.
If the parties have engaged lawyers then we welcome the involvement of the lawyers in the mediation.It is entirely a matter for the parties if they want their lawyers to be involved and we are happy either way.
The total cost for two intakes and a four hour mediation is $2310 including GST and this can be shared between the parties.
In future blogs, I will share more information about our processes.
I also invite you to look at our website www.brisbanemediations.com.au
Help in resolving your dispute is only a phone call(07 3839 7400) or email(resolve@brisbanemediations.com.au) away.
Mike Emerson
Tuesday, October 22, 2013
Sunday, October 13, 2013
Mediation Matters-Importance of the Mediation intake.
The intake is possibly the most important part of a mediation and can often determine or contribute to the ultimate success of the mediation.
The intake is a time set aside for the mediator to get to know a party and that party's perspective of the dispute.
It provides an opportunity for the mediator to explain the process and to try to get to know the background to the dispute and the underlying issues that may be impeding a resolution.
Most importantly, it is an opportunity for the mediator to develop a rapport with and gain the trust of the party.This rapport and trust is an investment in the outcome.When things get tough in the negotiation the same rapport and trust will assist the mediator to guide the parties to an outcome. Once the parties have trust in the mediator, the chances of a successful outcome increase as they are more likely to value any guidance that the mediator offers.
It is important that both parties feel that the mediator is listening and that they have been heard.
At Brisbane Mediations, we try to organise the intakes on a separate day, prior to the mediation itself.This enables parties to go away and mull over what the mediator has said before the mediation occurs.It also enables them to become familiar and more comfortable with the process before the actual day of the mediation.
Sometimes, it is not possible to organise the intakes earlier than the mediation day, however we consider it preferable to do so.
Another advantage of an earlier intake is that it enables the mediator and the parties to determine if mediation is the most suitable process for those particular parties and that particular dispute.Making an assessment of whether parties have the capacity to mediate is another important aspect.
Sometimes parties may want their legal representative to attend the intake and while this should never be discouraged, I generally tell each party that although their legal representative is present, it is really the party's opportunity to tell their story and for us to get to know each other. I usually say that by the end of the intake, I hope that the party not only understands the process but knows me and what I do better and that I have a good understanding of the party's perspective. Of course, while not stifling the party, the lawyer can often add vital information that assists the mediator.
The intake is also a good opportunity to ascertain whether there have been previous attempts to resolve the dispute and how successful those attempts have been. A mediator well known to me makes it his business to ask each party and, if present their lawyers, to say why they think that the dispute has not settled to that point.
Parties need to understand that their discussion with the mediator in the intake is confidential unless one or more of several exceptions apply. These should be carefully explained, so that the party can proceed with confidence that what they say to the mediator won't be divulged to the other party without their permission.
In summary, the intake is a most important tool for the mediator and should never be undervalued.
The intake is a time set aside for the mediator to get to know a party and that party's perspective of the dispute.
It provides an opportunity for the mediator to explain the process and to try to get to know the background to the dispute and the underlying issues that may be impeding a resolution.
Most importantly, it is an opportunity for the mediator to develop a rapport with and gain the trust of the party.This rapport and trust is an investment in the outcome.When things get tough in the negotiation the same rapport and trust will assist the mediator to guide the parties to an outcome. Once the parties have trust in the mediator, the chances of a successful outcome increase as they are more likely to value any guidance that the mediator offers.
It is important that both parties feel that the mediator is listening and that they have been heard.
At Brisbane Mediations, we try to organise the intakes on a separate day, prior to the mediation itself.This enables parties to go away and mull over what the mediator has said before the mediation occurs.It also enables them to become familiar and more comfortable with the process before the actual day of the mediation.
Sometimes, it is not possible to organise the intakes earlier than the mediation day, however we consider it preferable to do so.
Another advantage of an earlier intake is that it enables the mediator and the parties to determine if mediation is the most suitable process for those particular parties and that particular dispute.Making an assessment of whether parties have the capacity to mediate is another important aspect.
Sometimes parties may want their legal representative to attend the intake and while this should never be discouraged, I generally tell each party that although their legal representative is present, it is really the party's opportunity to tell their story and for us to get to know each other. I usually say that by the end of the intake, I hope that the party not only understands the process but knows me and what I do better and that I have a good understanding of the party's perspective. Of course, while not stifling the party, the lawyer can often add vital information that assists the mediator.
The intake is also a good opportunity to ascertain whether there have been previous attempts to resolve the dispute and how successful those attempts have been. A mediator well known to me makes it his business to ask each party and, if present their lawyers, to say why they think that the dispute has not settled to that point.
Parties need to understand that their discussion with the mediator in the intake is confidential unless one or more of several exceptions apply. These should be carefully explained, so that the party can proceed with confidence that what they say to the mediator won't be divulged to the other party without their permission.
In summary, the intake is a most important tool for the mediator and should never be undervalued.
Friday, September 27, 2013
Cuts to Family Court-Impact on court delays.
In the lead up to the federal election, the coalition announced a planned $30m cut to Family Court processes in its final costings. According to the Financial Review of Friday 20 September 2013, the president of the Law council of Australia will write to the new Attorney-General George Brandis, QC to ask where the proposed cuts to the Family Court will come from. Rick O'Brien,chair of the Family Law Section of the Law Council was quoted as saying that the Family Court and the Federal Circuit court "are both already under-resourced" and it was taking too long for casesto go through the system. Mr O'Brien noted that the Federal Circuit Court,Family Court and Western Australian Family Court are struggling with workloads and delays are at "an unacceptable level". As Mediators, on a daily basis we face concerns of parties about delays in the court system and the impact of these delays on their lives. Court delays are a major reason why parties try to avoid the court system and look for a resolution which enables them to move forward with their lives.This will increasingly be the case if the already stretched courts are asked to deal with further pressure on their resources. the only clue given by the coalition to it's proposals was an indication that it proposed to "streamline Family Court processes". At this stage it is not clear what is intended by this inclusion in the coalition's costings.
Sunday, September 15, 2013
Capital gains tax exemption for small business
Small business owners often don't understand the exemption from capital gains tax that applies if the business has been owned for 15 years.
An eligible small business owner is exempt from capital gains tax and can contribute part of the proceeds into superannuation without it being counted towards the normal annual contributions limits, under the small- business capital gains tax retirement exemption.
To qualify, a capital gain must flow from the sale of a small business where the owner had either net assets of less than $6 million or the business had a turnover of less than $2 million.
If the business was owned for 15 years and the owner is over 55 and is retiring, the business can be sold tax free. Furthermore a substantial part or all of the proceeds can be injected into superannuation and not count towards the normal contributions limits.
The source for this blog is The Financial Review 16-17 February 2013.
For further information, you should see your accountant.
Saturday, September 14, 2013
World's Happiest Nation
Fascinating to note that Australia is the world's happiest nation according to the index applied by the Organisation for Economic Co-operation and Development.
Australia has kept the top spot for the third straight year, leading Sweden and Canada.
The index measures each of 11 categories in 36 nations, giving equal weight to each category.
Criteria weighed include income, jobs , health, safety and housing.
The index also showed that Australians are more satisfied with their lives than the OECD average.
The results of the survey were released in May 2013.
Well done Australia !!!
Australia has kept the top spot for the third straight year, leading Sweden and Canada.
The index measures each of 11 categories in 36 nations, giving equal weight to each category.
Criteria weighed include income, jobs , health, safety and housing.
The index also showed that Australians are more satisfied with their lives than the OECD average.
The results of the survey were released in May 2013.
Well done Australia !!!
Wednesday, September 4, 2013
PEACE TALKS: Syria - a challenge for the most skilled and conscientious mediator
What right thinking person would not be distressed and inclined to join the chorus to, "Do something" about the human crisis in Syria that has been unfolding over recent weeks on the world stage?
Do we understand what is really happening there? Who are the disputing parties? What is the true composition of their ranks?
What are their positions in the dispute (that is, what is the bottom line that they are seeking)?
What secrets or hidden agendas are driving the dispute?
What unresolved hurts and grief from the past are interfering with a resolution?
Are the members of the disputing groups cohesive in their wishes or are they being intimidated and manipulated by strong and malevolent forces within?
What are the parents of the murdered children and of the young soldiers compelled to use force against their own people saying?
Who has the skills to engage the parties and seek the answers to these questions in an effort to help these poor people rise above their differences and have a chance of living their lives without fear and aggression?
Does the spectre of a "big brother" force bring with it more or less likelihood of resolution?
Although the stakes are much higher, these questions have much in common with those which need to be asked about every interpersonal dispute. At Brisbane Mediations we would contend that the more peaceful the resolution the better for all parties. What is your view?
PEACE TALKS - Denise Britton
Do we understand what is really happening there? Who are the disputing parties? What is the true composition of their ranks?
What are their positions in the dispute (that is, what is the bottom line that they are seeking)?
What secrets or hidden agendas are driving the dispute?
What unresolved hurts and grief from the past are interfering with a resolution?
Are the members of the disputing groups cohesive in their wishes or are they being intimidated and manipulated by strong and malevolent forces within?
What are the parents of the murdered children and of the young soldiers compelled to use force against their own people saying?
Who has the skills to engage the parties and seek the answers to these questions in an effort to help these poor people rise above their differences and have a chance of living their lives without fear and aggression?
Does the spectre of a "big brother" force bring with it more or less likelihood of resolution?
Although the stakes are much higher, these questions have much in common with those which need to be asked about every interpersonal dispute. At Brisbane Mediations we would contend that the more peaceful the resolution the better for all parties. What is your view?
PEACE TALKS - Denise Britton
Sunday, August 18, 2013
PEACE TALKS - What would Mum and Dad say if they knew you were fighting over their estate?
What would Mum and Dad say if they knew you were fighting over their hard earned property, super and other assets?
How often have we all heard that grief and loss bring out the best and the worst in people? It really is true isn't it? Sadly, when we lose significant people in our lives a chain reaction of free flowing emotions tends to start and all sorts of unresolved issues from the past can surface, including old sibling rivalry - feelings about unfair treatment by parents, unfair advantages to our brothers and sisters, things that weren't said and should have been or were said and shouldn't have been.
When Mum and Dad are no longer around to keep the family on some sort of an even keel or to even give their version of events, there is the potential for these issues to get right out of hand - especially if, for one reason or another, Mum and Dad decided that their estate should not be divided equally.
There are indeed laws about sorting out perceived inequities in respect of who is left what, and the courts are there to help as a last resort.
As mediators skilled in dealing with all types of interpersonal disputes, though, we know that "blood is thicker than water" in most cases. A discussion around a table under the guidance of a skilled mediator BEFORE the dispute escalates, has the best chance of ensuring the estate is not depleted through legal costs and of achieving a result everyone can live with and which allows siblings to continue on as a family - something every parent would want.
How would you feel if your kids ended up not talking to each other and trying to forget they were even related, just because you were prudent enough to have something to leave them? Most in those circumstances would rather spend it all before they went.
Give our expert and sensitive mediators the opportunity to help you sort your estate issues in a way which allows you to save money, save face and save relationships!
PEACE TALKS
How often have we all heard that grief and loss bring out the best and the worst in people? It really is true isn't it? Sadly, when we lose significant people in our lives a chain reaction of free flowing emotions tends to start and all sorts of unresolved issues from the past can surface, including old sibling rivalry - feelings about unfair treatment by parents, unfair advantages to our brothers and sisters, things that weren't said and should have been or were said and shouldn't have been.
When Mum and Dad are no longer around to keep the family on some sort of an even keel or to even give their version of events, there is the potential for these issues to get right out of hand - especially if, for one reason or another, Mum and Dad decided that their estate should not be divided equally.
There are indeed laws about sorting out perceived inequities in respect of who is left what, and the courts are there to help as a last resort.
As mediators skilled in dealing with all types of interpersonal disputes, though, we know that "blood is thicker than water" in most cases. A discussion around a table under the guidance of a skilled mediator BEFORE the dispute escalates, has the best chance of ensuring the estate is not depleted through legal costs and of achieving a result everyone can live with and which allows siblings to continue on as a family - something every parent would want.
How would you feel if your kids ended up not talking to each other and trying to forget they were even related, just because you were prudent enough to have something to leave them? Most in those circumstances would rather spend it all before they went.
Give our expert and sensitive mediators the opportunity to help you sort your estate issues in a way which allows you to save money, save face and save relationships!
PEACE TALKS
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