What is mediation?

Mediation can be a much better alternative to lengthy and expensive court proceedings. In family law disputes, mediation is a form of family dispute resolution (FDR) where parties to a dispute and their lawyers (if they are legally represented) are assisted by an independent third party (the mediator) to facilitate a mutually acceptable resolution to either parenting matters, property settlement matters, child support matters, or any other issues ancillary to family law matters.

The mediation process allows for the parties to reduce the conflict between them by encouraging cooperative problem-solving.  The process generally allows for the parties to reach a sustainable agreement that is tailored to the children’s interests and routines. The entire mediation process is voluntary and you can choose to not continue the process at any time.

As well as reducing legal costs, mediation allows the parties to control the outcome if an agreement is reached: when disputes go to court, the court may make decisions that neither party to the dispute are happy about.  Mediaion also allows the parties to explore “outside the box” solutions that probably wouldn’t be considered by a Court.

Parties must make a genuine effort during mediation to resolve the family law disputes before proceedings can be commenced in Court.

Any discussions during the mediation are entirely confidential and cannot be used as evidence in proceedings if the parties are unable to resolve the dispute. This allows the parties to make genuine concessions and settlement proposals during mediation, without being worried about those statements being used against them later on if proceedings are commenced.

What happens before mediation?

If you are legally represented, your lawyer can help you choose an appropriately qualified mediator that is suited to your dispute.

Prior to attending mediation, the mediator may reach out to both the parties separately to conduct intake sessions. During this session, the mediator will ask you questions about the history of the parties, what issues are in dispute and what you hope to achieve through mediation. This session will allow the mediator to assess the suitability of the mediation and if there are any risks to either of the parties. If you have a lawyer, your lawyer can assist you at the intake session.

If the mediator determines that there is a risk of family violence or that mediation is not suitable for some other reason, they may choose not to continue with mediation.

If you are legally represented, or if mediation is ordered by a court, then you (or your lawyer) may need to preare and exchange a written summary about the dispute before mediation occurs.. 

What happens on the day of mediation?

There are many different types of mediaion.  For family law matters, mediaion is usually conductd through shuttle negotiation.  This means the parties are never in the same room and the mediator will move between each room and communicate with the parties separately. Sometimes both parties’ family lawyers will meet each other and the mediator, to clarify specific legal issues or to hopefully narrow the issues in dispute, however your lawyer is not allowed to make decisions or share information without your express instructions.  You can also request to have a support person present with you at the mediation as well as your lawyer.

During the mediation, the practitioner will help the parties identify the issues in dispute and explore different options and negotiate potential solutions. It is important that if there are children of the relationship, that all solutions and options are in the children’s best interests. The mediator will ensure the focus remains on these interests throughout the entirety of the process.

Family law mediations can also be confducted remotely, for example via video-conferencing.  You and your family lawyer (and a support person if required) will meet at your lawyer’s office, your ex-partner will be at their solicitor’s office, and the mediaion can be conducted remotely through Microsoft Teams, Zoom, or some other video-conferencing app.  This can often helpd reduce the cost of the mediation, as well as provide convenience for parties who may reside some distance away from each other.

The goal of the mediation is to reach an agreement that is in the best interests of the children and resolves the issues in dispute. If the parties reach an agreement, it can be formalised through a non-binding parenting plan or legally binding consent orders. If no agreement is reached the parties may choose to proceed with an application to the FCFCOA.

What happens after mediation?

If you reach an agreement at mediation, your family lawyer or the mediator will assit you with reducing the terms of the agreed settlement to writing.  Your mediated agreement can be in the form of a parenting plan, final court orders to be made by consent, a binding agreement, or (if your disute is complex) a heads of agreement that sets out the principle terms of the agreement that will be used to draft court orders later on. The agreement can include the arrangements that the parties have agreed on as well as any mechanisms the parties may use to resolve disagreements and make changes to the arrangements in the future, if necessary.

If you do not reach an agreement about all or part of the dispute at mediation, you may still continue to negotiate a settlement after mediation, or you can still progress your matter to arbittation or start court proceedings. However, proposals or concesssions made during mediation remain confidential, and cannot be used after mediation ends.

I’ve been invited to a mediation, but I do not want to attend?

The parties to a dispute must make a genuine effort to resolve the dispute before initiating court proceedings.  In family law, there are rules that require parties to a dispute to attend mediation prior to filing an application for parenting orders.  It is also strongly encouraged that parties to family law financial disputes also attend mediation before going to court.  If you do not, then there may be orders made by the court requiring you to pay the other party’s legal costs.

However, for family law matters, you do not have to attend mediation if an exception applies. Section 60I(9) of the Family Law Act 1975 (Cth) explicitly sets out a number of exceptions including:

a)    There has been or there is a risk of family violence or abuse;

b)    The application is made in relation to a particular issue, about which an order has been made within the last 12 months;

c)     The application is made in circumstances of urgency; or

d)    The parties are unable to effectively participate in family dispute resolution for some other reason.

At Shorestone Legal, our solicitors have represented many different clients in many different and complex family law matters.  Some of the issues we have succeffuly advocated for through mediation include serious risk or harm to children, complex business interests or asset structures, and mediations involving third parties such as business partners or third party creditors.

We have also helped clients through mediaions for other types of legal matters, including challenging wills and civil disputes.

If you are involved in a dispute and are hoping to resolve your dispute without the delays and expense of Court, or if you have any questions about mediation for family laws matters or any other legal dispute, please let us know one of our qualified solicitors can either call you to discuss your situation, or sit down with you for a more comprehensive, detailed legal consultation.