Mediation can be used to reach agreement relating to how to divide the assets and debts of the relationship or the parenting arrangements or ‘custody’ of the children. Mediation is required before either party initiates proceedings at Court seeking parenting Orders.
You can engage in the mediation process through family relationship centres but we would not recommend doing in circumstances where you need to resolve a dispute with complex legal issues in a timely fashion.
Our family law team at Hickey Lawyers can provide guidance to you throughout every step of the mediation process, including facilitating the exchange of disclosure and preparing you for the meetings and intake process. We can legally represent you on the day and assist you in formalising any agreements reached at mediation to ensure final settlement of your matter.
We will also be able to assist you in engaging the right mediator by taking into consideration the issues involved, the dynamic with the other party (and their lawyer) and the complexity of your situation. It is not a case of one mediator fits all.
Contact our family law team for a no obligation free 45 minute consultation to discuss your family law matter.
Most family law mediations are conducted by way of a shuttle process. This means that the parties and their legal representatives are in separate rooms and the mediator will convey the offers and proposals back and forwards between the parties and may make suggestions on the framing of offers. This is an approach that is seen to be most effective in family law because typically each spouse may not feel comfortable, are emotional or may fearful of the other person so do not want to be on the same call as the other party. This allows each spouse to be best placed to make decisions without pressure and with the assistance of their legal advisor.
Most mediators will also ask that the parties arrive and leave the mediation at slightly separate times to avoid awkward run ins with the other side.
What is important for you to know is that the mediator does not take sides in the dispute or make a decision about which party is right or wrong. Instead they work with you and the other party, along with their lawyers, to come to an agreeable solution as part of your separation.
There is no one fixed mediation process as different mediators use different processes, have different skill sets and adopt varied styles. Your lawyer will assist you to select and engage the right mediator to assist given the issues involved, the dynamic with the other party (and their advisor) and the complexity of your situation. It is not a case of one mediator fits all.
Both parties’ legal representatives are sometimes asked by the mediator to make opening statements on behalf of their clients. The focus at this time is to work out what the main issues are and narrow them down into what both parties are in agreement about already and what issues there is disagreement about.
It is critical to understand that the offers exchanged at mediation are entirely confidential and cannot be used against either party if the matter does proceed to Court.
You are welcome to bring a friend or family member with you to the mediation if you believe it will help you on the day. However, it is important to consider the following pros and cons first:
Speak to your family lawyer first before deciding whether to have a support person and if so, who to bring on the day.
The mediation process is very different from the Court process as the aim of the day is to reach a mutual consensus. Therefore, your lawyer will act differently to how they would in Court. It is more likely they will calmly discuss the case with other practitioners, rather than advocate in the same way they do in Court. During times of mediation an aggressive approach will more often than not minimise the prospects of settlement rather than increase it, so your lawyer will be there to guide you through the process respectfully and work with the mediator and the other lawyer to positively problem solve.
It is important to remember that the aim of this process is to resolve the issues in dispute. Coming to an agreement often requires both parties to compromise. Your lawyer helps you to understand the ramifications of not reaching agreement. For example, the costs and timeframes involved in the litigation process as well as what your best and worst outcome might be if the matter is determined by a Court.
Once an agreement has been reached at the mediation, the terms of the agreement will then be set out in writing and signed. Once the documents have been formalised, usually in the days immediately following the mediation. It is important to remember that the agreement is not final until it has been formalised by way of Court Orders or a Financial Agreement. Unfortunately, people can and sometimes do change their mind after agreement is reached at mediation.
If you resolve the dispute and sign the terms of agreement for a property settlement or a parenting plan in child custody matters those documents will not be legally binding and enforceable unless they have been formalised by way of a Financial Agreement, Consent Orders or Court Orders (if Family Court proceedings are on foot).
If at the mediation, both parties do not come to an agreement, your lawyer will discuss the next steps with you. Both parties will then need to work with their lawyers to determine their strategies going forward which may include making further offers, or a determination by the Court. If the mediator is a qualified Family Dispute Resolution Practitioner, they can issue a ‘FDR’ or ‘Section 60I’ certificate which allows you to commence proceedings in the Family Courts.
As your family lawyer, we are there to prepare you for and support you through the mediation process. Preparation and obtaining all the necessary information needed for you to make informed decisions and negotiate the issues is key to the success of the mediation. We will work with you prior to the mediation to be prepared for the process and the different variables that may arise so you are well prepared and know what to expect.
Special Counsel
BA, JD
Jill heads our Family Law area of practice, bringing experience, knowledge and a practical approach to the firm.
+61 (0)7 5556 7400 wolffj@hickeylawyers.com.au