If you have a family law dispute that you need to resolve and you’d like to avoid going to court, attending mediation could be the solution. The family law mediation process not only allows you to keep your family law matter private, but it also ensures that you can keep the decision making process in your own hands, instead of in the hands of a third party such as a Judge (or Arbitrator).
What is Mediation?
Mediation is a confidential process where an independent and neutral third party (known as a mediator) facilitates negotiations between disputing parties in the hope of reaching an agreement about their dispute.
If you’ve considered litigation, then you may have found that mediation is a required step before your matter can be commenced in court (e.g. if you have a non-urgent parenting matter).
This is in part due to the fact that the family law mediation process is a very cost-effective process if you and your partner can reach an agreement together. It also allows your dispute to be resolved far quicker, and causes much less of an emotional strain. The Court’s have also found that there is more compliance with Orders if the parties themselves have reached an agreement, rather than having an Order/arrangement imposed upon them.
During the family law mediation process, the mediator cannot impose a decision upon the parties involved.
However, mediators (who are often experienced family lawyers), will use their skills to facilitate negotiations between parties. This then allows the parties to explore the issues in depth and reach the best possible decisions allowed by the circumstances.
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. This approach to mediation for family law matters will be used where it is believed it will assist the parties to make decisions and thereby come to an agreement that fits within the range of possible outcomes a Court might Order.
Although mediation frequently involves the parties’ legal advisors, in parenting matters, parties can often engage in the process without their legal advisors being present. However, if there is a power imbalance, family or domestic violence or other reasons that would suggest that it is not appropriate for a party to be unrepresented at mediation, legal representation is recommended.
The benefits of Family Mediation
There are a range of benefits to attending a family law mediation. These benefits include but are not limited to the following:
- Efficiency – Mediation is likely to produce a quicker outcome than the more formal processes of arbitration or litigation. It should therefore be considered as early as possible after a dispute has arisen.
- Affordability – mediation is often more cost effective than litigation as the preparation for mediation is not as involved when compared to initiating or responding to proceedings, and the costs are either fixed or more predictable than the unknown time in litigation once proceedings have been commenced.
- Mediation is particularly appropriate where a dispute involves complex issues and/or multiple parties.
- Empowerment – Mediation enables parties to have more control over the process and the overall outcome.
- Confidentiality – Information disclosed during the mediation cannot be used later in any court proceedings. This means that mediation is also useful where privacy and confidentiality are important. This often leads to more satisfactory outcomes for both parties.
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 are often not suitable where:
- There are circumstances of urgency;
- There is a significant power imbalance between the parties;
- The process is being used to avoid having to provide full and frank financial disclosure to the other party or where full and frank financial disclosure has not been made.
How can I prepare for Mediation?
The first step to preparing for mediation is to meet your lawyer and discuss your matter. You should provide them with copies of all relevant documentation and then discuss possible options for settlement.
For a financial matter, this means providing them with copies of all documents that evidence the assets, liabilities and superannuation interests of the matrimonial pool, as well as all documents that evidence your income and/or earning capacity.
For a parenting matter, this means providing them with copies of any previous Parenting Plans, Court Orders, Domestic Violence Orders and/or documentation evidencing any agreement reached between you and your ex-partner as to the parenting arrangements.
In providing this documentation to your solicitor, you should tell them about points you’re willing to negotiate on, and what you consider to be non-negotiable.
Your representative will then discuss your options with you. Once they have reviewed all the relevant documentation, they should also be able to manage your expectations and assist you in making fully informed and/or commercially considered decisions.
Finally, before your meeting, take some time to review all the documents you’ve prepared for discussion. If you know the documentation being discussed, you’re less likely to get flustered during negotiations.
What will happen during Family Mediation?
The format your mediation session will take is dependent on your requirements as well as the requirements of the mediator. If you and your partner are on speaking terms and can be civil with each other, 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 partner will be in the same building and sometimes in the same room for the initial ‘intake’ or start of the mediation (where the procedural matters are outlined/explained by the mediator), but thereafter, you’ll be in different rooms and the mediator will pass between you both, relaying information and offers.
If you’d like your mediation to take the form of a shuttle system, then you should tell your legal representative before the session so they can make the appropriate arrangements.
In other mediations, all parties (and their legal representatives) are in the same room, provided it is effective to do so and continues to be the preference of each party as the day goes on.
Regardless of the format of your mediation, 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 may choose to speak to the parties separately, or ask the lawyers to have a private meeting with the mediator to discuss the points of contention or potential proposals for resolution.
The main goal of mediation is for you and your ex-partner to reach an agreement.
If you do reach an agreement, then you should always discuss it fully with your legal representative before signing any legal documents.
If all parties believe that the agreement is mutually beneficial, then it can be formalised into a Parenting Plan or a Consent Order (if it’s a parenting matter), or it can be turned into Consent Orders or a Financial Agreement (if it’s a financial matter).