Mediation can take many different forms and is useful tool in attempting to settle family law matters without the need to commence Court proceedings. This is particularly important and relevant given the extensive delays that are currently experienced by parties in Family Court proceedings.
As outlined in our Family Dispute Resolution page, in parenting matters, it is necessary for all parties to attend mediation as the first step in their family law matter (although there are a few exceptions). However, apart from this, parties can elect to go to mediation at any time for their parenting matter, property matter and/or child support matter.
What are the benefits of mediation?
There are number of benefits to attending mediation to resolve your family law matter including:
- It is much faster than going to Court;
- It is more cost effective than going to Court;
- The entire process is confidential;
- It is more flexible than the Court process;
- It is less formal and more comfortable that going to Court;
- It allows parties to maintain control of their family law matter; and
- It focuses on the needs of both parties and attempts to find a way to meet these needs that works for both parties.
What is the process of mediation?
The mediation process involves you and the other party attending upon a professionally trained mediator to discuss issues in relation to your family law matter and attempt to resolve your dispute. Mediation provides parties with the opportunity to discuss a number of issues in a safe and confidential setting that parties may not otherwise feel comfortable raising.
The role of a mediator is to act as an independent third party. A mediator does not take sides and does not offer legal advice. A mediator will listen to each party about what they perceive the issues are, what they need to resolve the issues and what are their goals moving forward. The mediator will then facilitate meaningful discussions between the parties and guide the parties towards reaching an agreement.
Parties can attend mediation on their own or a legally assisted mediation can be organised, where each party is represented by their own lawyer. Each option has its own benefits. In the early stages of a family law matter, it may be best for parties to attend mediation without a lawyer and attempt to reach an agreement directly with the other party. In some circumstances, the other party may perceive you as being acrimonious by bringing a lawyer to mediation at an early stage however, in other circumstances, you may feel like you cannot negotiate with the other party without your lawyer present. Neither is right or wrong but each has their own advantages and disadvantages.
In preparation for mediation, both parties will be required to undertake an intake session in which the mediator will determine whether the matter is suitable for mediation. A matter may be assessed as unsuitable for mediation if for example, there is a history of coercive and controlling family violence. However, generally speaking, when both parties are legally represented, the matter will be assessed as suitable for mediation. The intake session will also provide both parties the opportunity to explain to the mediator the current issues and disputes they are facing in their family law matter.
Depending on how complex the matter is and how productive the discussions are, mediation can range from a few hours long to a whole day long. If the discussions between the parties are productive, a mediator will encourage the parties to continue negotiating throughout the day in an attempt to reach an agreement.
What happens if we reach an agreement at mediation?
If you reach an agreement at mediation, you will be able to formalise your agreement by way of an Application for Consent Orders. Your lawyer will be able to assist you with the preparation of the necessary documents to be filed with the Court.
A mediator is not able to make a determination about your matter nor are they able to formalise your agreement on the day of mediation.
What happens if we cannot reach an agreement at mediation?
If you are unable to reach an agreement at mediation, you can continue to negotiate with the other party directly or through your lawyer. If you are still unable to reach an agreement your options are:
- Participate in a further mediation; or
- Commence Court proceedings and have a Judge finally determine your matter (this is discussed in more detail in our Court representation page).