| Summary: | Recognition of the benefits that mediation offers to litigants and
to the court and tribunal systems has led to formal recognition
and institutionalization of the process in Australia, Canada, the
USA and many other countries. In many instances, these benefits
include flexibility of process, informality, a more conciliatory
approach to dispute resolution and reduced costs to parties.
Some of these benefits, when compared to more traditional and
adversarial court processes, have also flowed from the introduction
of tribunals in many jurisdictions, including guardianship.
Guardianship proceedings in Australia are by tribunals, not
courts, and they use flexible procedures, are generally timely, informal,
non-adversial and rarely involve extensive legal costs. In
applications made pursuant to guardianship legislation in Australia,
guardianship tribunals are required to consider the wishes
of the person about whom a guardianship application is made,
find the outcome that is the least restrictive of that person’s freedom
of decision or action and make decisions that are in the best
interests of that person. In this tribunal environment a number
of questions arise regarding the use of mediation in guardianship
proceedings. Firstly, if the process is already efficacious and
inexpensive, do the usual inducements for using mediation arise?
Secondly, effective mediation requires that one party is not at a
significant disadvantage to another during the mediation process.
What measures, if any, are in place to ensure that an elderly
person with a disability is able to participate in mediation in a
meaningful way? Thirdly, given the legislative principles to be
applied by guardianship tribunals once an application is before
them, is it ever appropriate that an application be resolved by
consensus between the parties and if so, when? This article addresses
these questions and other issues that need to be addressed if
mediation is to play a larger role in resolving guardianship issues.
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