[Updated 26/09/2024 by Taylor Wilson]
Effective family mediation at an early stage can avoid lengthy, costly and emotionally draining contested court proceedings. This may save you significant time, money and worry.
If you are wondering how mediation works and if it can work for you, keep reading to learn more about this beneficial process.
How Does Family Mediation Work?
Family law mediation allows separating couples to come to an agreement about their property and/or parenting issues with the assistance of an independent third party, called a mediator.
The mediator’s role is to assist separating parties in reaching an agreement. However, they will not impose an agreement on them or make any orders; this is outside of the scope of their role.
Before the mediation starts, the mediator usually meets with each person separately. This helps the mediator understand their position and make sure mediation is the right approach for their situation.
At the start, both sides will share their views so the main issues can be identified. The mediator will then help them talk through things to reach an agreement and work out the details.
You and your partner can attend mediation without solicitors at first to see if you can make progress. This can be helpful because it avoids the more confrontational approach that solicitors sometimes take. You can always take a more confrontational approach later if required.
Benefits of Mediation
Mediation may reduce your legal fees at the outset.
Having a solicitor present on your behalf from the outset ensures that your interests are protected to the fullest extent.
A solicitor can also ensure that any agreement reached is adequately captured in the appropriate documents to make sure that the matter is concluded on a final basis.
Challenges in Mediation
Mediation is often an effective method of dispute resolution, but it can come with challenges.
Refusal to compromise, lack of preparedness or an inability to communicate can all hinder the mediation process and ultimately impact its success.
Going in prepared and being willing to compromise will contribute to a successful mediation.
Parenting Agreements in Mediation
Regarding parenting, you may be able to establish those issues which are currently preventing you from reaching an overall agreement even if you are unable to overcome those issues immediately. This will all be good progress.
Any parenting plan which deals with custody issues secured at mediation ought to be enshrined within a formal parenting order in court if you wish to rely on it and enforce it at a later stage.
A parenting plan cannot be enforced in a court. However, a formal parenting order can be, although the process can be somewhat complicated.
If parenting issues do not settle at mediation, you will, at least, be issued with what’s called a ‘section 60(i)’ certificate in respect to parenting issues, something that is usually required before being able to issue a parenting application at court.
What Happens if the Other Party Does Not Attend Mediation?
If the other party does not attend mediation or refuses to meaningfully participate, you can ask the mediator to issue a section 60I certificate.
You will need to file a copy with the court when filing an initiating application, so the court can see you have complied with pre-action procedures. These certificates are valid for 12 months.
There is no limitation about attending mediation again if the first occasion was unsuccessful. You are free to attend again if everyone agrees.
Property Settlement in Mediation
Property settlement in mediation may be a more challenging conversation. At the very least, you may be able to agree on the assets, financial resources, superannuation and income positions for both, even if you are unable to agree how they should be divided.
Do you have to attend mediation in property settlement?
In most cases, mediation will be recommended by your family law solicitor. This is because the court requires that the parties have attempted mediation or have tried to attempt mediation prior to commencing court proceedings.
You are not required to attend mediation if it is not safe to do so. If you have concerns for your safety while attending mediation, you should convey this to your solicitor and the mediator ahead of time.
Where possible, arrangements can be made to conduct the mediation electronically so that you do not need to be in the same room as your former spouse.
Is Mediation Legally Binding?
All discussions at mediation are ‘off the record’ or ‘without prejudice’ and so cannot be used against you at a later stage or referred to in later court proceedings. – still accurate.
If you and your partner make decent progress and reach a tentative agreement in the absence of lawyer representation at the mediation centre, you can always obtain independent legal advice upon it before finally committing.
If I Refuse Mediation, Will it Go Against Me in Court?
The short answer – yes, to an extent. The court will look more favourably upon parties who have made a genuine attempt to resolve disputes outside of court.
If the court determines that you have frustrated the process by refusing to meaningfully engage or negotiate, or failed to comply with pre-action procedures, you may be liable to a costs order.
As discussed above, there is no limitation preventing parties from attending mediation at any point, or attempting it more than once.
If you have any questions regarding mediation or have a family law matter you would like to discuss, contact our expert family lawyers on 07 5444 1022.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal our situation.
Greenhalgh Pickard’s Team of Family Lawyers
