Family Law Mediators Brisbane | Damien Greer Lawyers

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If you have a family law dispute you need to resolve and you’d like to avoid going to court, attending mediation could be the solution.

What is mediation?

A confidential process

Mediation is a confidential process where an independent and neutral third party (known as a mediator) facilitates negotiations between disputing parties.

Quicker, and more cost-effective

Mediation can allow your dispute to be resolved far quicker than via litigation. It also tends to cause much less stress and can be far more cost-effective.

Can create more agreeable results

It is our experience that there is often more compliance with Orders parties reached themselves, rather than those imposed on them in court.

A pre-requisite to litigation

If you are considering litigation, mediation is a required step before your matter can be commenced in court.

Controlled by the parties, not the mediator

During the family law mediation process, the mediator cannot impose a decision upon the parties involved. Instead, they will use their skills to facilitate negotiations between parties.

Mediators can be asked to offer solutions

With the parties’ consent, some experienced mediators may offer their opinion on the strength of each party’s case and/or their prospects of success.

Is the Family Court mediation process suitable for everyone?

Although many people find the mediation process useful, it isn’t suitable for everyone. For example, the family court mediation process is often not suitable where:

There are circumstances of urgency
There is a significant power imbalance between the parties or allegations of domestic violence.
The process is being used to avoid having to provide full and frank financial disclosure.

The Mediation Process

1) Preparation

To prepare for mediation, you should discuss your situation with your lawyer, and provide them with copies of all relevant documentation. You should also discuss with them the points you’re willing to negotiate on and what you consider non-negotiable.

Your lawyer will then discuss your options with you. Once they have reviewed all the relevant documentation, they will assist you in making fully informed, and/or commercially considered decisions.

2) The Format is Arranged

The format of your mediation session will depend on your requirements, as well as the requirements of the mediator. If you and your former partner are on speaking terms and can be civil with each other and there are no allegations of domestic violence, then the mediation can initially start with you both in the same room.

Most mediators tend to engage in what is known as a ‘shuttle mediation’. In a shuttle mediation, you and your former partner might start in the same room for the ‘intake session’. But from there, you’ll be in different rooms, and the mediator will move between you both, relaying information and offers.

3) The Mediator Will Discuss Aims & Expectations

At the beginning of the session, the mediator will discuss the aims of the session and what is expected of everyone. From there, the mediator will often speak to the parties separately and ask the lawyers for a private meeting to discuss the points of contention, or potential proposals for resolution.

4) Proceedings Move Towards an Agreement

The main goal of mediation is for you and your former partner to reach an agreement. If you do reach an agreement, then you should always discuss it fully with your lawyer before signing any settlement documents.

If all parties believe that the agreement is mutually beneficial, then it can be formalised by a Parenting Plan or a Consent Order (if it’s a parenting matter), or it can be formalised as Consent Orders or a Financial Agreement (if it’s a financial matter).

What to expect from your mediation

Although some people initially dislike the idea of seeing, let alone attending mediation with their ex partner, there are several benefits to doing so.

Mediation FAQs

Mediation and/or Family Dispute Resolution can assist separated couples to reach agreement with the help of an independent, neutral party: a Mediator/Family Dispute Resolution Practitioner.

If an agreement is reached you may choose to keep it as an informal arrangement, or formally document it by recoding the agreement in consent orders to be submitted to the Court, or by executing a formal contract, referred to as a Financial Agreement. The agreement will become legally enforceable if you have the proposed consent orders approved by the Court or a financial agreement validly signed by the parties and their respective lawyers. Your solicitor can discuss with you which of those options is most appropriate in your circumstances. It is important that you do not sign any documents at Mediation without first obtaining advice from a family law solicitor. For example, with respect to parenting matters, if you do reach an agreement about your children and both you and your partner sign and date the agreement, it will be considered a ‘Parenting Plan’. While a Parenting Plan is not a legally binding document, any court later making a decision about your children must still take the Parenting Plan into account so it is a legal document and therefore should not be signed without legal advice.

The Mediator’s job is to assist you to reach agreement. The Mediator controls the Mediation process to facilitate you and your partner talking constructively about your family law issues and to ensure that both you and your partner are given a chance to have your say. However, the Mediator is not a lawyer for either of the parties and will not (or should not) give you any legal advice.

All parties are bound to make a genuine attempt to resolve the matter before commencing proceedings unless it is unsafe or the matter is urgent. Parties are expected to undertake several steps before commencing proceedings as part of the Court’s pre-action procedures. These include:

Exchanging disclosure
Making inquiries and inviting other parties to mediation or other forms of alternative dispute resolution (where it is safe to do so)
Participate in dispute resolution; and
Giving the other party notice that you intend to commence proceedings, and making an offer to settle within that warning.

Failure to comply can have consequences, including an order for the non-complying party to pay some of the legal costs incurring by the complying party. For parenting matters, the Court has the power to reject your application if you have commenced proceedings without a family dispute resolution practitioner issuing you a certificate, referred to as a section 60I certificate, confirming that you:

That mediation was unsafe for one party; or
Offered mediation, but the other party did not participate; or
Attended mediation and made a reasonable attempt to resolve the matter.

There are some exemptions to this requirement. If any of situations below apply to you, you may make an application to the court without attending Family Dispute Resolution first:

you have reached an agreement and are applying to the court for a Consent Order;
your matter is considered to be urgent;
there has been or there is a risk of child abuse;
there has been or there is a risk of domestic violence;
you are responding to a court application made by your ex-partner;
your matter has been ‘screened out’ as unsuitable for Family Dispute Resolution.

Damien Greer Principal

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