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Best Practice: A better way to resolve disputes

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Cite as: May 2015 89 (5) LIJ, p.76

All lawyers should explore and learn the skills that underpin mediation.

Mediation has been a part of the Australian dispute resolution landscape since the early 1990s. Back then it was a concept that was often mixed up with medication or meditation – somewhat confusing for the parties looking for resolution. It was often viewed with suspicion by those professionals not familiar with the process and the underpinning theory.

Fast forward to 2015 and mediation is not only an accepted process to resolve disputes across a number of disciplines but is also identified as a valuable tool in other areas such as project management. Mediation in all its various forms is being practised by professionals across the legal, social science, education and human resources sectors just to name a few.

Mediation has found its place as the primary dispute resolution process due to the creation of the National Mediation Standards and accreditation for mediators, under which more than 2500 mediators have been nationally accredited, and registration as family dispute resolution practitioners through the federal Attorney General’s department. Both these qualifications have changed the practice of mediation from a set of skills that professionals acquire to a profession in its own right.

The mediation process is simple in approach; an impartial third person assists parties in dispute to have a guided structured discussion about identified issues. The parties’ self-determination is often seen as the key to the mediation process and certainly in matters that involve the parties continuing to have an ongoing relationship.

The skills used to produce these outcomes, whether through a formal mediation process or not, are invaluable for all lawyers. Far from being a skill that only experienced lawyers gain after many years in practice, or obtain as they phase out of legal practice, the ability to draw parties together and collectively come to a mutually agreed outcome is arguably one of the most important skills any legal professional has in their toolkit and increasingly one which younger lawyers are embracing.

Mediation no longer gets mixed up with meditation (not a lot anyway) and the skill that underpins mediation is something that all lawyers should explore and learn. This is why so many law schools around Australia are making dispute resolution and mediation a compulsory first year course. l

LINDA KOCHANSKI is adjunct lecturer, The College of Law, nationally accredited mediator and registered family dispute resolution practitioner. Practice tips are provided by the College of Law.

. . . qualifications have changed the practice of mediation from a set of skills . . . to a profession in its own right.

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