Use of, and Attitudes to, Mediation Services Among Divorcing and Separating Couples

July 1998

A report by Denis Muller & Associates, for Relationships Australia (Victoria)

This study was carried out against the background of the Federal Attorney-General's Department White Paper, Delivery of Primary Dispute Resolution Services in Family Law. The White Paper states that the Government is considering a greater community sector focus in the provision of federally funded primary dispute resolution services, in an effort to improve effectiveness.

Against that backdrop, this study:

  • Explored the sources of assistance divorcing and separating couple use, and assessed their relative importance;
  • Looked at how they arrived at their settlements and their satisfaction with those settlements;
  • Gauged their awareness of, and attitudes towards, mediation services.

The fieldwork for the study was carried out in May and June 1998.

The report shows that people who were not aware of mediation services at the time of their separation or divorce felt they might have been better off - in terms of cost, fairness of outcomes and access to information - if they had used family and child mediation to resolve their issues.

Table of contents

1. Introduction

This study was carried out against the background of the Federal Attorney-General's Department White Paper, Delivery of Primary Dispute Resolution Services in Family Law.

The White Paper states that the Government is considering a greater community sector focus in the provision of federally funded primary dispute resolution services, in an effort to improve effectiveness.

Three criteria are set for judging effectiveness:

  1. The extent to which people are encouraged to resolve their problems themselves.
  2. How easy it is for them to find and gain access to dispute-resolution services.
  3. Value for the taxpayer's money.

Against that backdrop, this study:

  • Explored the sources of assistance divorcing and separating couple use, and assessed their relative importance;
  • Looked at how they arrived at their settlements and their satisfaction with those settlements;
  • Gauged their awareness of, and attitudes towards, mediation services.

The fieldwork for the study was carried out in May and June 1998.

In this report we provide an executive summary, describe the methodology, and present the findings in detail. We also discuss some ideas for a communications strategy which might be used in the development of a community education program about mediation services. The questionnaire used is included as Appendix I.

The consultants would be happy to discuss these findings with the client in whatever forum the client requires.

We would like to take this opportunity of thanking Relationships Australia, Victoria, for asking us to carry out this important and interesting work, and for their constructive input into the design of the study and the questionnaire.

2. Executive Summary

  1. From whom, if anyone, do people obtain help?
  2. What was the most important single source of help?
  3. How was settlement finally arrived at?
  4. Had the settlement been fair?
  5. Had settlement been reached amicably?
  6. Had the settlement been complicated?
  7. Awareness of mediation services
  8. Reasons for not using mediation

2.1. From whom, if anyone, do people obtain help?

Seven out of ten people DID obtain help from others. Three out of ten did not.

  • Of the seven out of ten who did, many obtained help from more than one source.
  • Lawyers were the most often used source of help - 72% of those who sought help from others sought it from lawyers.
  • Other frequently used sources of help were relatives and friends.
  • Clergy and doctors are not used by many people for this purpose.

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There were significant differences between men and women.

  • Women were twice as likely to obtain help from relatives.
  • Women were much more likely to obtain help from friends.
  • Women were much more likely to obtain help from a lawyer.
  • Women were twice as likely to obtain help from a doctor.
  • Men were nearly twice as likely to do it themselves.

Ownership of property makes a difference.

People who owned or were paying off their home were:

  • Somewhat more likely to obtain help from others, than were those not owning or paying off their home.
  • Much more likely to obtain help from a lawyer.
  • Somewhat less likely to obtain help from relatives.
  • Much less likely to obtain help from friends.

Existence of dependent children does not make a difference on the question of whether people obtain help.

Age makes a difference to where people turn for help.

People under 40 are:

  • Much more likely to turn to relatives or friends for help.
  • Much less likely to turn to the clergy or doctors for help.
  • BUT: There is no difference on age grounds in the propensity of people to turn to lawyers.

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2.2. What was the most important single source of help?

Among those who obtained help, by far the largest proportion - 51% - stated that lawyers were the most important source.
 

2.3. How was settlement finally arrived at?

  • The vast majority of people - 90% - involved themselves in arriving at their settlement. Only 10 per cent left it entirely to their lawyers.
  • More than half arrived at a settlement between themselves alone.
  • Another one-third arrived there with the help of lawyers.
  • Only a tiny proportion - 4% - arrived there by negotiating with the help of outsiders other than lawyers.

There are significant differences between these groups on whether they think they would have been better off using a mediation service.

  • Two-thirds of those who arrived at a settlement between themselves alone said they would NOT have been better off using a mediation service. One third said they WOULD have been better off.
  • 17% of those who left it entirely to their lawyers said they WOULD have been better off using a mediation service.
  • Half of those who arrived at their settlement with the help of lawyers said they WOULD have been better off using a mediation service. A quarter said they would NOT have been better off.

2.4. Had the settlement been fair?

Two-thirds thought their settlement had been fair and one-third thought it unfair. Women were slightly more likely than men to say that the settlement had been fair.
 

Perceptions of the usefulness of mediation differ according to whether people thought their settlement was fair or unfair.

  • Overall, 65 per cent thought their settlement was fair.
  • And 67 per cent of people who did not know mediation services were available thought their settlement was fair.

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Of this latter group of people:

  • 59 per cent of those who thought they would have been better off using a mediation service thought that their settlement was fair.
  • 54 per cent of those who thought they would have been better off using a mediation service but who could not afford it, said their settlement was fair.
  • 78 per cent of those who thought they would not have been better off using a mediation service thought their settlement was fair.

People who thought their settlement was unfair are three times more likely to think that mediation would have yielded them a fairer settlement, than are those who thought their settlement was fair.
 

2.5. Had settlement been reached amicably?

Almost two-thirds said it had been reached amicably and slightly more than one-third said it had not been reached amicably.

People who had arrived at their own settlement were much more likely to say it had been reached amicably than were those who had used lawyers or other people to assist.

Further analysis suggests that if people are still talking to each other, still have a reasonable relationship, then they are perhaps likelier candidates for mediation than those who are at daggers drawn.
 

2.6. Had the settlement been complicated?

Almost two-thirds said it had not been complicated, and just over one-third said it had been complicated. Home ownership or the existence of dependent children made no difference to this issue of perceived complexity.

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2.7. Awareness of mediation services

Exactly one-third had been aware of the existence of mediation, and two-thirds had not been aware.

  • Awareness was somewhat higher than average among those who settled between themselves.
  • Awareness was somewhat lower than average among those who had used lawyers to settle, and lowest among those who had left it entirely to the lawyers.
  • Awareness was much higher among people under 55 than over 55.

2.8. Reasons for not using mediation

Among those who had been aware of mediation services but had not used them, the most common reason given was that 'we worked it out ourselves' (28%).

Other reasons were:

  • Partner not willing (19%)
  • We didn't need or want it (16%)
  • We're still friends, it wasn't necessary (11%)
  • It wouldn't have helped (10%)
  • Used lawyers instead (8%)
  • No chance for reconciliation (7%) - (suggesting a misunderstanding of mediation)
  • Too expensive (6%)
  • No one willing to compromise (5%)
  • Family and friends were support enough (4%)
  • Tried it but it didn't work (3%).
  • Other grounds (1% each) were:
  • Prefer not to speak to strangers
  • Caused more problems
  • Brought up money matters
  • In a very emotional state
  • Too busy with work to use
  • Thought there was a long waiting period
  • Didn't want face contact with the ex.

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Among those who had been aware of mediation services at the time:

  • 20% now say they would probably have been better off to use it
  • 26% now say they would probably have been better off to use it, but couldn't have afforded it
  • 48% now say they probably would not have been better off.

The four most common reasons - in order - for people saying they would have been better off using mediation:

  1. It would have been cheaper.
  2. They would have got a fairer settlement.
  3. They might have communicated better.
  4. They would have got more information or would have known better what to do.

The four most common reasons - in order - for people saying they would NOT have been better off using mediation:

  1. It was very amicable, we're still friends, it wasn't necessary.
  2. My partner was not willing.
  3. We worked it out ourselves.
  4. It doesn't work.

Looking at the survey data as a whole, neither education levels nor religion were important variables on any of the major issues - source of help, means of arriving at settlement, perceptions of the nature of the settlement, or awareness of mediation services.

Ethnicity was not a major variable either. However, it should be noted that only 8 per cent of respondents defined themselves as 'feeling attached to, or part of, an ethnic community'. Among those who did, the most numerous were (in order) those who felt part of the Italian, Jewish, Greek and Aboriginal communities.

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3. Methodology

3.1 Population criteria

This study was confined to people either in de jure or de facto marriages who separated or divorced in the past 10 years and did not use formal mediation services provided by either the Family Court or private providers. We allowed respondents to self-define on their marital status. That is, if they said they had been 'married' we accepted that, without seeking to establish whether it had been a de jure or de facto marriage.
 

3.2 Definitional issue

It was essential to define for prospective respondents the meaning of the term 'mediation service'. The definition used was:

By 'mediation service' we mean Relationships Australia's mediation service, the Family Mediation Centre, the mediation service of the Family Court, or a private mediator to assist you settle issues such as parenting and property. We do NOT mean marriage guidance counselling or Family Court counselling or assistance by friends or other individuals.
 

3.3 Research approach


It was decided to use a quantitative approach, on the basis that this was likely to yield more concrete date than would have been the case had qualitative methods been used, while at the same time meeting the objectives of the study.

A major challenge was to assemble a random sample of respondents from the population as a whole, given the very narrow basis on which people would qualify for inclusion. The consultants adopted a snowball approach. Using a market-research recruitment agency, a list was made of the first names and telephone numbers of 50 people who met the criteria described above. In addition, a recruitment question based on the criteria was added to a number of omnibus surveys conducted by Australian Fieldwork Solutions over a period of three months.

By these methods, a sample of 150 was assembled. These 150 were then interviewed. In the process, they were asked if they could nominate others in the same position as themselves, but not in the same former relationship. By this means, the sample of 303 was ultimately drawn.

The study, then, was conducted among a partly random, partly recruited sample of 303 people across Victoria who had been divorced or separated in the past 10 years from a partner with whom they had lived in either a de jure or de facto marriage, and in the process of divorcing or separating, had not used a mediation service as defined.

The interviews were conducted by telephone by Australian Fieldwork Solutions during May and June 1998

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Findings

 

4. Summary of Main Findings



Question 1 - We would like to ask you what you did in arriving at a settlement when your relationship was ending. Did you obtain help from any of the following: Relatives, friends, clergy, lawyer, doctor, others (specify).


Multiple responses were permitted, because of the likelihood that people would seek help from more than one source. Thus the percentages in Tables 1a and 1b add to more than 100.
 

Table 1a: Where people obtained help
  Total Sex Home Ownership
 
%
Male
%
Female
%
Yes
%
No
%
Lawyer 50 39 54 55 30
Friends 31 24 35 28 42
Relatives 27 15 33 25 36
Doctor 12 7 14 12 12
Clergy 5 4 5 5 4
Other 2 3 2 2 3
No-one 31 46 25 29 38


'Other' sources of help were:

  • 'Family Court for mediation but we found it didn't help, so we then arrived at our own settlement'
  • 'Uniting Church counselling'
  • 'Social worker'
  • 'Crisis line such as Lifeline'
  • 'Family welfare counsellor'
  • 'Accountant'
  • 'Marriage guidance counselling'

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Doctors and clergy were used by small proportions - the clergy by only 5 per cent. People for whom religion was either important or very important were more likely than others to turn to the clergy, but also to a doctor, and the data suggest that this is correlated with age rather than any other variable. Older people were more inclined to say that religion is important, and were also more inclined to turn to the clergy or a doctor. Even among this group, however, resort to these sources of help was low and relatively unimportant.

Nearly one-third of respondents said they had turned to no one for help in arriving at a settlement, but had done it between themselves. These people were more likely to be younger (under 40), and not home-owners. Other variables such as the existence of dependent children, religion and level of education seem not to be important factors in the decision to arrive at a settlement without outside help.

There were significant differences between men and women on the question of where they had gone for help (see Table 1a).

  • Women (33 per cent) were more than twice as likely as men (15 per cent) to obtain help from relatives.
  • Women (35 per cent) were somewhat more likely than men (24 per cent) to obtain help from friends.
  • Women (54 per cent) were also somewhat more likely than men (39 per cent) to obtain help from a lawyer.
  • Women (14 per cent) were twice as likely as men (7 per cent) to obtain help from a doctor.
  • Men (46 per cent) were nearly twice as likely as women (25 per cent) to obtain help from no one.

It can be seen that the source of help drawn on by the largest proportion of people was a lawyer, but further analysis of the data tells us that people who obtained help from a lawyer also obtained help from relatives, friends, doctor or some other source (see Table 1b).
 

Question 2 - Which was the single most important source of help?


Table 1b: Where people obtained help, and which was most important
Most important source Sources where help was obtained
  Rels
%
Friends
%
Clergy
%
Lawyer
%
Doctor
%
Other
%
No-one
%
Relatives 51 23 7 14 23 14 -
Friends 14 41 29 7 31 14 -
Clergy 1 - 14 - - - -
Lawyer 24 27 29 71 17 - -
Doctor 2 3 7 3 20 - -
Other 2 - - 1 3 71 -
No-one - - - - - - 100
Don't know 5 5 14 3 6 - -


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Table 1b also tells us that among those who used a lawyer, 71 per cent said the lawyer was the most important single source of help.

Among those who used relatives, 51 per cent said they had been the most important single source of help, and among those who used friends, 41 per cent said friends had been the most important single source of help.

But even among people for whom relatives had been the single most important source of help, approximately one half had also used a lawyer. And among people who said friends had been the most important, approximately one quarter had also used a lawyer, and a quarter had used a doctor.
 

Question 3 - Looking at your settlement, how was it finally arrived at:

  • Negotiations involving only ourselves
  • Negotiations between our lawyers only (without our participation)
  • Negotiations involving ourselves and others (specify)

Table 2: How people negotiated their settlement
Negotiations Total Sex Age Own home
 
%
M
%
F
%
25-39
%
40-54
%
55+
%
Yes
%
No
%
Ourselves only 53 57 51 58 48 48 47 71
Lawyers only 10 10 10 8 12 16 11 9
Selves & lawyers 32 27 34 28 36 32 38 13
Selves & others 4 3 5 5 3 4 3 7


More than half our respondents finally negotiated a settlement without involving others. People who did not own, or were not paying off, a home were far more likely to negotiate between themselves alone. Younger people (58 per cent) were more likely to negotiate between themselves than were people 40 and over.

Just over 40 per cent negotiated with the help of lawyers.

Only 10 per cent left it to their lawyers alone to negotiate.

Very few involved outsiders who were not lawyers.

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Question 4 - Looking at the settlement from your point of view, would you say it was: Very fair, quite fair, not very fair, not at all fair?


Table 3a: Was the settlement fair?
  Total Sex Home ownership
 
%
Male
%
Female
%
Yes
%
No
%
Fair 65 61 67 63 72
Not fair 35 39 33 37 28


 

Table 3b: Perceptions of fairness according to how the settlement was negotiated
  Total How settlement was negotiated
    Selves
%
Lawyers only
%
Selves & lawyers
%
Selves & others
%
Fair 65 76 35 61 38
Not fair 35 24 65 38 62


People who negotiated a settlement between themselves or with the help of their lawyers were markedly more satisfied than than those who either left it to their lawyers or who involved others in the negotiations. This suggests that people do better to involve themselves, but also like to involve experts. It could be argued that if the mediation service was seen to be expert, the service could be attractive.
 

Question 5 - And would you say it was reached amicably or not reached amicably?


Table 4a: Was the settlement reached amicably?
  Total Sex Home ownership
 
%
Male
%
Female
%
Yes
%
No
%
Amicably 62 65 60 60 68
Not amicably 38 35 39 40 32


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This is a matter of perception, and it can be seen that women are slightly less inclined to perceive the settlement as amicable , even though they are slightly more inclined to see it as fair (Table 3b).
 

Table 4b: Perceptions of how amicable, according to how the settlement was negotiated
  Total How settlement was negotiated
 
%
Selves
%
Lawyers only
%
Selves & lawyers
%
Selves & others
%
Amicably 62 77 39 49 31
Not amicably 38 23 61 49 69


People who had been able to negotiate a settlement between themselves were much more likely to have reached an amicable settlement than anyone else, followed by those who had negotiated it in conjunction with their lawyers. The majority of those who had left it entirely to their lawyers, or had used others, felt that the settlement had not been amicably reached.

Overall, nearly 40 per cent felt that the settlement had not been amicably reached. Again this suggests scope for competent professional assistance - but with the involvement of the parties.

Question 6 - And would you say it was very complicated, quite complicated, quite simple, very simple?



Table 5a: How complicated was the settlement?
  Total Sex Home ownership
 
%
Male
%
Female
%
Yes
%
No
%
Complicated 36 36 36 38 30
Not complicated 64 64 64 62 70


Table 5b: Perceptions of settlement's complexity, according to how it was reached
  Total How settlement was reached
 
%
Selves
%
Lawyers only
%
Selves & lawyers
%
Selves & others
%
Complicated 36 23 55 49 54
Not complicated 64 78 45 51 46


Two-thirds of our respondents saw their settlement as pretty straightforward.

People who owned a house or had dependent children were more inclined to see their settlement as complicated than were those who did not. Furthermore, those who had arrived at the settlement themselves were much more inclined to say it was not complicated than were those who had involved others in the settlement process. This might reflect one of two things: that the settlement was inherently complicated and required the involvement of others, or that the settlement was not inherently complicated but had been made so by the involvement of others.

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Question 7 - At the time of separation, did you know that specialist mediation services were available?



Table 6: Awareness that specialist mediation services were available
  Total Sex Age Method of settlement Own home
 
%
M
%
F
%
25-39
%
40-54
%
55+
%
Self
%
Law.
%
Self, law.
%
Self, other
%
Yes
%
No
%
Yes 33 31 34 39 31 16 37 26 29 38 35 26
No 66 66 66 60 69 80 63 71 71 62 64 74


Two-thirds of people who have separated or divorced in the past ten years and did not use a mediation service, did not know it was there to be used.

This lack of knowledge was higher among people aged 55 and over (although the incidence of divorce or separation among this group is much lower than among younger people).

Awareness was also somewhat lower among people who had involved lawyers than among people who had not involved lawyers in their settlement.

Awareness was slightly lower among those who did not own their own home, and among the less well-educated.

Question 8

Asked only of those who DID know that mediation services were available.

Question 9

Asked only of people who did NOT know that mediation services were available.

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5. Communications Implications

There are a number of communications implications from these results. Here we offer a very brief series of points which seem to us to be worth consideration. We have set them out under the headings of:

  • Purpose
  • Audience
  • Message
  • Tone
  • Media

It seems to us there are two purposes:

  • To raise awareness in the general community about the existence of mediation services, and
  • To persuade people that mediation services offer the necessary expertise in a supportive environment.

For each of these, there are different audiences, and for each set of audiences there are different messages.
 

Purpose 1: Raise awareness of the existence of mediation services

Audience

The adult community as a whole, including ethnic communities, especially the Italian, Jewish, Greek and Aboriginal communities.
 

Messages

  • We're here
  • How to find out more

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Purpose 2: Persuade people that mediation can offer expert and cost-effective assistance in arriving at a settlement.

Audiences 1

  • Women
  • People who still have a reasonable relationship with their former partners
  • Younger people (under 40)

Messages

  • We are someone you can turn to
  • We have the necessary expertise
  • We are cost-effective
  • We can help you each get a fair go

Audiences 2

  • Men

Messages

  • You don't have to do it all yourself
  • Expert and cost-effective assistance is available

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Tone

We would suggest that the tone should be reassuring, confident, supportive, simple, straightforward.
 

Media

Bearing in mind the cost of media exposure, we suggest that the client should think widely about media. First, we would suggest thinking about unpaid as well as paid exposure. We would also suggest thinking in terms of information distribution and awareness-raising.

In terms of information distribution, vehicles such as church magazines, newspapers and newsletters published by community and ethnic organisations, and offering articles to suburban newspapers. We would suggest reaching people in domestic and familiar settings. This kind of exposure will also tend to raise awareness, but its main focus would be informational.

Naturally, for general awareness-raising, the mainstream main media are essential but there is always less control over the final product, and it usually has elements of 'news' which get in the way of the information: political and argumentative content and extraneous material of various kinds, as well as a news structure which is artificial and therefore makes the informational content more difficult to comprehend.

These are simply some suggested starting points. It would be necessary to plan the communications strategy in far greater depth before implementing it.

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Appendix 1: Questionnaire

Relationships Australia: Mediation Study
Questionnaire

Screening questions

1. Have you personally been separated or divorced within the past 10 years from someone you were married to or lived with?

If yes:

  • We want to ask you whether you used a mediation service or not in arriving at any settlement you might have made.

    By 'mediation service' we mean Relationships Australia's media tion service, the Family Mediation Centre, the mediation service of the Family Court, or a private mediator to assist you settle issues such as parenting and property. We do NOT mean marriage guidance counselling or Family Court counselling or assistance by friends or other individuals.

  • During the separation or divorce, which of these procedures best describes what you did in arriving at a settlement:
    1. The court decided what our settlement should be.
    2. We went to a mediation service and arrived at a settlement.
    3. We arrived at our own settlement without using a mediation service.

If 1 or 2, terminate.


If 3, continue.


We've been asked to conduct a survey among people such as yourself about mediation services. Could we ring you back towards the end of January to ask you just a few questions on this subject. The questions are not personal in nature, and all information would be treated in strict confidence.

If yes, record first name and phone number, thank and terminate.

If no, to the opening question:

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Is there anyone else at home now who has been separated or divorced within the past 10 years from someone they were married to or lived with?


If so:

  • Could I speak to that person please. Then repeat as above.

If not, terminate.
 

Substantive questions


Introduction


Could I speak to (first name) please.

You may recall we asked you a few weeks ago if we could interview you about mediation services for people who had been divorced or separated.

You may recall that:

  • By 'mediation service' we mean Relationships Australia's media tion service, the Family Mediation Centre, the mediation service of the Family Court, or a private mediator to assist you settle issues such as parenting and property. We do NOT mean marriage guidance counselling or Family Court counselling or assistance by friends or other individuals.


1. We would like to ask you what you did in arriving at a settlement when your relationship was ending. Did you obtain help from any of the following:


  • Relatives
  • Friends
  • Clergy
  • Lawyer
  • Doctor
  • Others (specify) __________

2. 'If one only, skip to 3. If more than one': Which was the single most important source of help?


(Record) ____________________

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3. Looking at your settlement, how was it finally arrived at?


  • Negotiations involving only ourselves
  • Negotiations between our lawyers only (without our participation)
  • Negotiations involving ourselves and others (specify)

4. Looking at the settlement from your point of view, would you say it was:


  • Very fair
  • Quite fair
  • Not very fair
  • Not at all fair

5. And would you say it was:


  • Reached amicably, or
  • Not reached amicably.

6. And would you say it was:


  • Very complicated
  • Quite complicated
  • Quite simple
  • Very simple

7. At the time of separation, did you know that specialist mediation services were available?


  • Yes
  • No

If no, skip to 9. If yes:

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8. Why did you not use a mediation service?


(Open-ended) Probe.

Then skip to 10.
 

9. (If no to 7) In fact, mediation services are available, at a cost of about $600 to $700, to help people arrive at a settlement over parenting and property.


Looking back, which of these statements comes closest to your view:

  • I would probably have been better off using such a mediation service.
    (Probe: Why do you say that?)

or

  • I would probably have been better off using such a mediation service but I could not have afforded it.
    (Do not probe.)

or

  • I would probably not have been better off using such a service.
    (Probe: Why do you say that?)

10. At the time, did you and your former partner own your home (or were you paying it off)?


  • Yes
  • No

11. Did you have dependent children at the time?


  • Yes
  • No

12. At the time, what, if any, was your religion?


  • Catholic
  • Other Christian
  • Muslim
  • Jewish
  • Other (specify) __________
  • Nil

(If Nil, skip to 14)

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13. At the time, how important was religion in your life:

  • Very important
  • Quite important
  • Not very important
  • Not at all important

14. Is there any ethnic community that you feel attached to or part of?


  • Yes
  • No

15. If yes, specify____________________



16. What is the highest level of education that you personally have attained:


  • Primary school
  • Some secondary school
  • Completed secondary school
  • Trade or technical qualification
  • University qualification

17. Could you please tell me how old you are.


Are you:

  • 18 -24
  • 25-39
  • 40-54
  • 55 and over

18. Gender


  • Male
  • Female

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Content Updated: 30 April 2012