Mediation at Legal Aid Western Australia

 

Legal Aid WA (“LAWA”) offer an outstanding mediation option.

 

The LAWA model is slightly different to other forms of mediation offered by community organisations. The main difference is that the parties have the benefit of legal advice and representation at a dispute resolution conference. There will also be a chairperson present who will guide the parties through the process. The success rate of this kind of mediation is very high.

 

You should note that in the information below, the terms “dispute resolution conference”, “conference” and “mediation” are used interchangeable and generally mean the same thing.

 

How does it work?

 

The timeline of events is usually as follows:

  • either your or your ex-partner need to apply for a grant of aid for a DR Conference
  • the party who is likely to meet LAWA’s eligibility criteria should be the party to apply
  • if aid is likely to be granted, LAWA will contact the other party to explain the benefits of a dispute resolution conference and to ask whether they are willing to be involved in mediation
  • if aid is granted and the other party agrees to take part, you will both be assigned a lawyer
  • your ex-partner will also be assigned a lawyer. Depending on your ex-partners financial circumstances, Legal Aid may ask them to contribute towards the costs of the conference. The contribution is minor in comparison to engaging a lawyer privately or going to Court
  • prior to the conference, you will talk with your assigned lawyer and they will get your “Preparation Forms” ready
  • the parties will exchange their “Preparation Forms” prior to the conference
  • on the day of the conference, you need to attend the mediation at the agreed location (usually at Legal Aid offices in Perth, but it can be at a different location too)
  • you should arrive no less than 15 minutes prior to the time the conference is due to commence
  • the conferences usually run for 3-4 hours (and sometimes longer). You need to make sure you are available and can stay for the whole duration of the conference
  • just prior to convening the conference, you will get a chance to talk to your lawyer and the chairperson will also come in to talk to you. The chairperson will also talk to the other party and their lawyer
  • the conference will then convene. Generally speaking the conferences are usually conducted in one room and all parties will be present (each party, their lawyers and the chairperson)
  • the chairperson ultimately decides how to run the conference, the agenda and process

 

What is the role of the chairperson?

 

The chairperson:

  • is a neutral third party
  • cannot give legal advice to either party
  • will lead the mediation conference and facilitate discussion
  • is most often a family lawyer or will alternatively have a background in social sciences such as psychology or social work
  • is an accredited registered family dispute resolution practitioner (FDRP)
  • is able to issue a section 60I Certificate in the event you cannot reach an agreement at mediation

 

Do I qualify for Legal Aid?

 

To find out if you can get aid for a LAWA dispute resolution conference, you will need to complete and lodge a LAWA aid application form.

 

Anyone can apply for aid. You will only get a grant of aid, however, if you meet LAWA’s eligibility criteria. The criteria is explained in detail on LAWA’s website here.

 

I will let you know, at your initial advice appointment, if I think you might meet the eligibility criteria for a LAWA dispute resolution conference. If so, I will prepare and lodge an application for aid on your behalf free of charge. You will need to provide supporting documents so it’s a good idea to ask about this beforehand and to bring these documents along to your appointment. The application for aid won’t be lodged unless we have these supporting documents.

 

How can I prepare for the conference?

 

Legal Aid will send you standard “Preparation Forms” to complete prior to the conference. Your lawyer will go through the forms with you and help you to complete them. The main aim of the forms is to provide a background to the matter, but more importantly to explore various ways to settle your dispute.

 

The chairperson will ultimately decide how to run the conference. However, many chairpersons will begin by asking each party to say a few things in response to the following questions:

 

  1. How do you see the situation at present?
  2. How have you been affected by it?
  3. What is important to you?
  4. How would you like things to be for the future?

 

It’s a good idea to think about the questions above and make short notes before the conference so you know what you want to say. If you are second to talk, you don’t need to “answer” the statements made by the first party. Simply talk and answer the questions as if you were the first person to talk.

 

Even if the chairperson doesn’t ask you the above, the questions are a good reference point to help you remember what you want to achieve with mediation.

 

Important things to remember and know about LAWA Dispute Resolution Conferences

 

  • If you are granted aid, the other party will also get a grant of aid (even if they wouldn’t otherwise qualify). Depending on their financial circumstances, they may be asked to contribute to the costs of the conference. Alternatively, Legal Aid may seek to lodge a memorial against real estate that you own to secure their costs
  • Both parties must agree to take part in the conference
  • If one party refuses to attend, LAWA might then consider it appropriate to give a grant of aid to the other party to start proceedings in the Family Court
  • LAWA have two types of conferences- a children’s conference and a property conference
  • Other issues, such as child support, cannot be mediated at a conference
  • All communications, negotiations and statements made during any part of a conference are made on a without prejudice basis. This means that anything said, written or done by any participant or any person involved in the conference is confidential and not admissible in Court
  • There are some exceptions to the rules about confidentiality, such as if information emerges that leads the chairperson to believe a child or any other person is in danger of harm
  • The process is not “adversarial”. This means that you are not there to argue or put your case forward. The chairperson is not a decision maker. The parties are ultimately the decision-makers and the focus is on them to work through the issues, ideas and proposals to reach an agreement
  • The process is respectful. Each party takes turns to talk and its not appropriate to interject or talk over someone else. The focus is on achieving a resolution, not on the past and what’s happened before. You should approach the mediation with an open mind and willingness to compromise

 

How can I apply for a Legal Aid Dispute Resolution Conference?

 

I will let you know, at your initial advice appointment, if I think you might meet the eligibility criteria for a LAWA dispute resolution conference. If so, I will prepare and lodge an application for aid on your behalf free of charge. You will need to provide supporting documents so it’s a good idea to ask about this beforehand and to bring these documents along to your appointment. The application for aid won’t be lodged unless we have these supporting documents.

 

Otherwise, you can also apply for a LAWA dispute resolution conference in the following ways:

 

  • call LAWA’s information line 1300 650 579 and ask for an application form to be send to you by post
  • download an application form from LAWA’s website at legalaid.wa.gov.au
  • get an application form from a Community Legal Centre or from a LAWA office

 

Where are the dispute resolution conferences usually held?

 

Legal Aid Western Australia

Dispute Resolution Unit

Level 2 / 32 St. Georges Terrace

PERTH  WA  6000

 

Conferences can sometimes be held in other locations too. LAWA also have video link facilities available.

 

What happens if a LAWA dispute resolution conference is unsuccessful?

 

I’ve been involved in countless dispute resolution conferences. I always enjoy participating in them, mainly because an agreement is achieved on almost all occasions.

 

If there is no agreement however, you are still able to pursue other dispute resolution options, such as mediation through a Family Relationship Centre or a private mediator. Alternatively, parties can choose to go straight to the Family Court.

 

The chairperson may make a recommendation to LAWA about whether its appropriate (based on the merits of your matter and the conduct of the parties at the conference) to fund either party in substantive proceedings in the Family Court.

 

The chairperson is also able to issue a section 60I Certificate to enable either party to make an application to the Family Court about children’s issues.

 

What happens if we reach an agreement?

 

An agreement about arrangements for your children can be formalised by either a parenting plan or Consent Orders. An agreement about property can be formalised by Consent Orders. Usually the grant of aid covers the legal costs arising from the preparation of these documents.