Understanding Divorce Mediation

Posted on October 13, 2023 by Kerry Anne Aguilar

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Kerry Anne Aguilar

Author
Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and financial matters including but not limited to property settlements, spousal maintenance, child support agreements, prenuptial agreements, cohabitation agreements and postnuptial agreements.

What is divorce mediation?

Divorce mediation is a type of dispute resolution where, with the assistance of a neutral third party known as the mediator, former spouses are able to discuss and negotiate aspects of their separation or divorce.

This resolution method is non-adversarial, and the purpose of divorce mediation is to allow the parties involved to air their concerns and wishes, with the aim of working together to find an outcome that works for their unique situation. The mediator acts as a facilitator and ensures that productive discussions take place.

Mediation can be undertaken at any point of the divorce process and is encouraged to have been attempted prior to applying to the Federal Circuit and Family Court of Australia to resolve matters. Depending on the types of matters that are in dispute, mediation may also be a requirement before a couple can apply to the Court for orders.  

Divorce mediation can be a highly empowering dispute resolution method for all parties involved as it allows them to have control over the outcome of their matter. It can also be a more efficient and cost-effective method of dispute resolution than going to Court.  

The types of matters that can be dealt with in divorce mediation include parenting and child custody arrangements, property and asset division, and financial support such as child support and spousal maintenance. In some cases the mediation may only be about one aspect of the separation, such as property settlement mediation.

The divorce mediation process

While the process of divorce mediation may have some slight variances depending on the unique circumstances of your situation and the matters you’re trying to resolve, the process typically involves the following steps:

Step 1: Choosing a divorce mediator

Mediation should always be undertaken with a highly qualified and experienced mediator. Mediators should be either an accredited family law specialist or Family Dispute Resolution Practitioners and are recognised by various organisations in Australia.

Your family lawyer will be able to help point you in the right direction to find a mediator.

Step 2: Prepare for mediation

It’s important to take the time out to think about your goals and desired outcomes for your divorce mediation sessions. It’s also a good idea to consider the things you’re willing to compromise on. You should also ensure you have all relevant documentation, including communication records, asset lists and various other documents that may need to be reviewed or referenced during your mediation.

Step 3: Attending an initial mediation meeting

Before divorce mediation officially commences, you and your former spouse will have an initial meeting with your mediator to ensure that mediation is a suitable option for your situation. This is also a great time to learn more about the process of mediation and have questions answered about the process too.

Step 4: Attend mediation

If mediation is considered to be a suitable for your circumstances, you and your ex-spouse will take part in mediation sessions. Mediation often happens in person, usually at the mediator’s office, however, it is possible to do online divorce and family mediation or over the phone.

The number of divorce mediation sessions and their duration will vary from situation to situation and will be dependent on factors such as the complexity of the matters being resolved and the willingness of both parties to participate effectively.

Step 5: Has an agreement been reached?

If the parties are able to come to an agreement during the divorce mediation process, the agreement can be made legally binding. Or if the parties are unable to reach an agreement, then they may need to try other methods of dispute resolution, like litigation.

  • Experience: The experience of your mediator means that not only can they help to facilitate discussions between the parties, but the mediator can draw on their past experiences to be able to provide suggestions and ideas to help you resolve your matters.
  • Confidentiality: Mediation is a completely confidential process where your personal matters can be privately discussed.
  • Maintain control: When parties require the Court to resolve their matters, it means that they relinquish control over the situation, including control over the outcome of the matter.

When is divorce mediation not recommended?

While mediation can be a great tool for dispute resolution, it may not always be an appropriate option. Some situations where mediation to resolve divorce disputes may not be suitable include:

  • When high levels of conflict exist.
  • There is an imbalance of power (abuse or violence has occurred).
  • Parties are unwilling to compromise or cooperate.
  • Complex financial circumstances.
  • One of both parties suffer from severe mental health issues.

What happens after divorce mediation?

If you’ve been able to reach a mutually acceptable agreement during mediation, the recommended thing to do is to formalise the agreement by applying to the Court for consent orders. This means that the agreement will be legally binding and enforceable.

An agreement made during divorce mediation is not legally enforceable on its own and parties do not necessarily have to make their agreement legally binding either.

When an agreement is legally enforceable it means that if either party breaches the terms of the agreement, there may be legal consequences including imprisonment.

What happens when divorce mediation fails?

If parties can’t reach an agreement, they may need to consider other avenues like arbitration or court proceedings. It’s essential to remember that not every mediation leads to resolution, but even partial agreements made during mediation can simplify subsequent court processes.

Cost of divorce mediation

While the mediation process is generally more cost-effective than court proceedings, costs can vary based on a wide range of factors, including but not limited to:

  • the mediator’s fees
  • the number of mediation sessions required
  • the types of disputes being resolved
  • where you’re at in the dispute resolution process; and
  • whether family lawyers are involved.

Some mediation services are available free of charge; however, most private mediation providers will have fees associated.

According to a survey conducted of experienced mediators in Australia in 2023, the average cost of mediation charged by the mediator per party for family law mediation ranges from $1100-$2400.

What now?

The journey of separation and divorce is undeniably challenging. Yet, with tools like divorce mediation, couples have a pathway to resolve their family disputes amicably.

If you’re going through a divorce or you have questions about mediation in family law matters, our highly experienced and compassionate family lawyers Australia are here to help you.

You can discuss your situation with us during a free consultation. Call us on 1300 667 461 or book online using the button below.

unified-lawyer-kerry-ann-aguilar

Kerry Anne Aguilar

Author
Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and financial matters including but not limited to property settlements, spousal maintenance, child support agreements, prenuptial agreements, cohabitation agreements and postnuptial agreements.

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