You may be surprised to know that there are different methods and approaches taken in a Family Law Mediation. As to which is most suitable will largely depend on a number of factors. They include:
- The level of harmony amongst the parties;
- Whether there has been a history of family violence;
- Whether there is a power imbalance;
- Whether there are any risk factors;
- What the dispute is about (for example, is it a narrow dispute as to how much superannuation has been accumulated over the relationship or a wide dispute involving the impact of family violence on the children)
The two main methods or approaches to mediation are described as a positional bargaining approach or a needs based approach. There are others, including a hybrid of approaches but it is useful to consider each and think as to what may best suit your circumstances.
For example, if the main reason for the dispute is distrust as to each others activities when the children are with the other parent, it may be useful to explore the needs and views of each parent in a forum where the other parent hears that and comments and provides feedback which both parents can do in turn. The ultimate goal of the mediation is to allow each parent to be heard and have the other make some space or consider that perspective and to then encourage the parties to find solutions which they both can live with. This approach allows each parties interests and needs to be explored and hopefully understood to resolve the “heart” of the problem. Sometimes communication is needed in such a way to allow agreement to be reached.
If, however, “its all about the money” and “the bottom line” of how much each party wants is the primacy of the argument then the positional bargaining approach is probably the most efficient. In court based mediation, positional bargaining is the most common form of mediation as there is a very limited time to reach agreement and accordingly lawyers generally focus on a clear position, often sidelining the needs / interests of the parties, to focus on a clear position. Often, however, parties leave such a mediation not feeling heard. In Disputed Wills and Family Law parenting matters, if carefully conducted by an Accredited Mediator, a needs / interests based mediation will likely get to the underlying reasons for the dispute and permit a long term compromised position with both parties feeling that they were heard. Accordingly, if at all possible (and it is not always possible or desirable) then a needs / interest based mediation is a more fulfilling approach for long term outcomes.
Differences Between Positional Bargaining and Needs-Based Approach
Positional Bargaining:
- Fixed Positions: Each party holds onto a specific position and negotiates from that standpoint, often leading to a compromise that may not fully satisfy either party. “I wont settle for anything less than $4 million, and ideally I want $4.6 million”. “Under no circumstances am I not having the Children for every Christmas Day, she can have them Boxing Day”
- Competitive Nature: This approach is adversarial, with each side aiming to win as much as possible.
- Outcome: Typically results in a win-lose situation or a compromise where neither party’s underlying interests are fully addressed.
Needs-Based (Interest-Based) Approach:
- Focus on Interests: Parties identify and discuss their underlying needs and interests rather than fixed positions.” I need to achieve at least $4 million as I have chronic health impairment and need an operation which will cost me $2.9 million. Without it, I am going to need 24 hour care and will be institutionalised. I don’t think that would be in the childrens interests as they would effectively lose their father”.
- Collaborative Nature: This approach encourages cooperation and aims for a win-win outcome where both parties’ needs are met.
- Outcome: Solutions are more likely to be mutually beneficial and sustainable, addressing the core concerns of both parties.
Application in Family Law FDR Context in Australia
In the context of Family Dispute Resolution (FDR) in Australia, a needs-based approach is often preferred due to its collaborative nature and focus on the best interests of all parties involved, especially children. Here’s how it can be applied:
- Child-Centered Focus: FDR practitioners often use a needs-based approach to ensure that the children’s best interests are prioritized.
- Facilitative Mediation: This method helps parties explore their underlying needs and interests, leading to more amicable and sustainable agreements.
- Power Imbalances: The needs-based approach can help address power imbalances by focusing on fair and equitable outcomes.
Using a needs-based approach in FDR can lead to more satisfactory and lasting resolutions, making it a valuable method in family law contexts.
Having said all of that, the common approach in FDR in Family Law and Family Provisions is a Position Based approach. That is primarily due to:
- The very limited time available in the mediation, noting that Needs / Interests based mediation takes longer to adequately allow each party to be heard and solutions reached;
- The common approach adopted by the Legal Profession;
- The existence of the factors outlined above which make it unsuitable such as a history of family violence or Unequal bargaining power of the parties.
You should engage the services of a Nationally Accredited, Accredited Specialist in Alternative Dispute Resolution to conduct or advise you as to resolution to avoid court. Michael Vassili is a Nationally Accredited Mediator (NMAS) as well as a Dispute Resolution Accredited Specialist (Law Society) and is in an exceptionally strong position to get your best outcome in avoiding litigation. We can be contacted at any time on 1300557819 for a no cost initial conference.
