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(e)whether one of the parties may be using the mediation option to gain delay or some other advantage; and

(f)any other matter relevant to the proposed mediation.”

9.35Gibson suggested two further factors should be taken into account, though these are not included in rule 5:

(1)whether one of the parties has impaired functioning due to alcohol or drug abuse, psychiatric illness or mental instability, and

(2)whether there is a history of broken agreements affecting trust.

9.36If mediation is deemed unsuitable, then Order 25, rule 6 provides that the parties will be informed of the other primary dispute resolution methods available. 968

Goals

9.37The goals of mediation are set out in Order 25, rule 10, of the Family Court Rules:

“(1)A mediation conference must be conducted:

(a)as a decision making process in which the court mediator assists the parties by facilitating discussion between them so that they may:

(i)communicate with each other regarding the matters in dispute; and

(ii)find satisfactory solutions which are fair to each of the parties and (if relevant) any children; and

(iii)reach agreement on matters in dispute; and

(b)in accordance with any general directions given by the Principal Director of Mediation”.

9.38Anything said in a mediation conference or meeting to a court mediator, community or private mediator is not admissible in court.969  A family and child mediator has the same protection and immunity as a Judge of the Family Court in the performance of his functions.970

Lawyer’s involvement in mediation

9.39Order 25A, rule 11, provides that parties may be accompanied by their lawyers.  Where lawyers are involved in the process, Altobelli argued there is a greater chance of settlement.971  He referred to the case conferencing scheme,

968 Rule 10 (2).

969 Section 19N.

970 Section 19M.

971 See infra.

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