How Does Mediation Help in Family Law Matters?

Posted on June 16, 2023 by Taylor Reardon - Family Lawyer

Taylor Reardon Team Member Picture.

Taylor Reardon - Family Lawyer

Author
Taylor joined the family law and litigation team at Unified Lawyers in 2019. Taylor has completed a Bachelor of Laws and Bachelor of Arts in Communication (Social and Political Science) at the University of Technology Sydney and holds a Graduate Diploma of Professional Legal Practice.

Key Takeaways

  • Family mediation is a useful resource that helps former spouses to resolve disputes that have arisen during their separation.
  • Resolving disputes through mediation is encouraged in Australia’s family law system as it can be more cost-effective and is often successful.
  • Being able to discuss and learn about each person’s position through mediation can help to foster an ongoing amicable relationship between former spouses.

One of the dispute resolution options available is family mediation.

Family mediation can help the former spouses to come to an agreement and avoid a lengthy and frustrating court battle – but how does it work and what kinds of matters can be resolved with family mediation? That’s what we’re here to help you understand.

In this article, we will provide you with a comprehensive overview of family mediation, including the matters that can be resolved, the benefits and downsides of the process and answer the most common questions we as family lawyers are asked about family mediation.

What is family mediation?

Family mediation is a type of alternate dispute resolution (ADR) which is essentially a blanket term that describes the different processes that can be used to resolve disputes outside of court.

Family mediation is a process where people in conflict are facilitated by a neutral and impartial third party to help to resolve their dispute. The meditator’s role is to listen and identify the disputed issues and goals of each party and assist them to engage in discussions that will hopefully help to come to an agreement that resolves their dispute.

While the main goal of mediation is to resolve the disputes, other goals are to allow the parties to understand the disputes from each other’s perspectives to hopefully enable them to come to an agreement that they are both comfortable with.

Mediation and ADR are encouraged by the family law system in Australia rather than relying on courts to resolve disputes. And when it comes to parenting matters that need to be resolved, a genuine effort to resolve the dispute must be made through either family law mediation or Family Dispute Resolution (FDR) before the matter can progress to the Family Law Court system. There are exceptions to this such as if the matter is urgent or you or your child is in immediate danger.

Family Dispute Resolution (FDR) is a type of mediation conducted by an independent family dispute resolution practitioner and is specifically designed for separated families and encourages the parties to focus on the needs of their children to help in resolving these disputes.

What kinds of family law matters can be resolved using mediation?

As we mentioned earlier, disputes can arise over all kinds of matters between ex-spouses and/or separated parents. The good news is that family mediation can be useful in resolving a wide range of family law matters such as:

Parenting Matters

  • Parenting arrangements, including custody and visitation schedules;
  • Decision-making responsibilities (parental responsibility) for major issues affecting the child’s life (education, healthcare, religion, etc.);
  • Resolving disputes regarding schooling choices or medical treatments for the child.
  • Relocation of a parent or child;
  • Communication and co-parenting strategies;
  • Child support and financial provisions for the child’s upbringing; and
  • Parental involvement in the child’s extracurricular activities or special events.

 

cartoon image of a former couple in family mediation discussing parenting and property matters.

Property Matters

The above lists are only some of the different family law matters that family mediation could help to resolve. Every situation is unique, and we recommend talking to a family lawyer to see whether family law mediation is appropriate for you.

How does the mediation process work?

The family law mediation process may differ depending on your circumstances and situation, however, in general, it will usually involve the following steps.

Gathering information prior to mediation

Before your mediation session, you may be required to provide certain information and documents to ensure that an informed mediation discussion can take place. You may also have a chance to talk to your mediator to learn more about the specific process in your situation. They may also be able to answer questions you may have about the process too.

Mediation session

The mediator conducts the mediation session, which usually involves both parties and their respective legal representatives (if applicable). The mediator will explain their role which is to guide the discussion, promote respectful communication, and encourage parties to express their concerns and interests. The mediator also uses this time to explain the ground rules and ensure the parties are willing to comply with them.

Issue identification

Parties are given the opportunity to identify the key issues in dispute and express their interests and desired outcomes. The mediator helps clarify misunderstandings, encourages empathy, and assists parties in exploring possible solutions.

Joint discussions and idea generation

The mediator helps the parties engage in brainstorming and creative problem-solving to generate potential options for resolution. The mediator encourages open dialogue, explores alternatives, and facilitates negotiation between the parties.

Private discussion

The parties are given the opportunity to discuss their options and opinions with the mediator and without the other party present. Or they can discuss them with their family lawyer. This private discussion allows the parties the opportunity to prepare for negotiations and think about their options.

Negotiation and further discussion

The mediator helps the parties to explore their options further and negotiate an agreement that is mutually acceptable.

Reaching an agreement

If an agreement is able to be reached, the mediator can assist in documenting the terms of the agreement. This agreement is not enforceable, but it is evidence of what has been agreed upon by both parties. The agreement can be made legally binding through parenting orders or consent orders. You ensure you talk to a lawyer before applying for orders.

Court applications

After mediation, whether it’s successful or not, the practitioner will issue a Section 60I certificate to allow an application to be made to a family law court.

If mediation does not result in an agreement or if there are outstanding issues, parties may need to consider further legal action and apply to the court for a decision or orders.

If mediation has resulted in an agreement, then an application to make the agreement binding through consent or parenting orders can be made to the courts.

How long does family mediation take?

In terms of how long family mediation takes or how often you may need to participate in it, it really depends on the type of matter you’re trying to resolve, how complex it is, how willing the parties are to work together to resolve the conflict and the overall level of conflict that exists between the parties.

For some disputes, it may take less than a day to come to a resolution while others may take multiple days and may still end up requiring court intervention or further mediation sessions.

There’s no exact amount of time that mediation should take.

Pros and Cons of Family Mediation

What are the benefits of family mediation?

Family mediation can be extremely beneficial for all parties involved. One of the reasons for this is because the goal is to find a solution that takes both parties perspectives into consideration. Some of the benefits that can come from mediation include:

Save time and money

It’s no secret that court matters are expensive. And can take a long time to come to a resolution. Often you need to wait a period of time before your case can be heard by the court and the hearing itself could also take a long time. This results in significant legal fees and depending on the outcome, could be even more costly than expected.

Helps to decrease the risk of further issues

Mediation allows parties to actively participate in crafting their own solutions and encourages open communication, fostering a greater understanding and cooperation between them. This can aid in maintaining a healthy relationship and being amicable.

Each party has more control over the process and outcome

One of the greatest benefits of mediation is that each party can help to shape the process and outcome of mediation rather than having to abide by a court-dictated outcome.

Less emotionally stressful

Family law matters can take their toll on us emotionally and cause a lot of stress. Many people have never had to be involved in a legal matter or step inside a court room which are both stressful situations. As mediation tends to be less time consuming than court, it can reduce the stress you experience.

Flexibility

The mediation process can be a lot less strict and rigid than court. Mediation can be organised for a time and place that suits both parties and can also explore a wide range of options too.

Privacy

The details of your situation can be kept behind closed doors between the parties, the mediator and the party’s lawyers ensuring privacy. This helps to create a safe environment where parties can express their concerns, interests and solutions.

What are the downsides of mediation?

While there are many benefits of family mediation, there are some drawbacks too. Some of these include:

Agreements are not automatically mandatory

Although parties may reach an agreement in mediation, it is not automatically legally binding, requiring additional steps and involvement of solicitors to formalise the agreement through a court application.

Unresolved issues

If parties are unwilling to cooperate or reach an agreement, certain issues may remain unresolved, necessitating court intervention for dispute resolution.

Uncertain outcomes

Mediation does not guarantee a resolution as it relies on the willingness of both parties to find common ground, leaving the possibility of unresolved disputes persisting.

Potential costs

In cases where mediation fails to produce an agreement, the costs incurred for the mediation process may be considered as wasted, and parties may still have to bear the financial burden of court proceedings.

If an agreement is made during mediation, should it be formalised?

We mentioned above that while you may come to an agreement in mediation, it is not a legally binding agreement and is not enforceable – a family mediator is not able to make rulings or decisions or make an agreement formal.

After an agreement is made, the parties can decide to keep the agreement informal or they can formalise it and make it legally binding.

If the parties choose to keep the agreement informal it means that if one of the parties does something against the agreement, there isn’t a lot that the other party can do about this. Depending on the circumstances they may wish to seek legal advice to see what their options are, however, the agreement is not legally enforceable. Keeping the agreement informal requires a lot of trust between the parties.

We suggest taking steps immediately after the mediation to make the agreements legally binding, through parenting orders or consent orders. You will need legal support to do so, but it is the best way to ensure each party sticks to the agreement.

While the parties may agree in mediation, there are a lot of external factors that could influence their decisions afterwards. For example, a party may choose to discuss the agreement with a new partner, a friend, or a family member, who may disagree with it or convince them that it isn’t a good agreement. If the agreement is informal, this could result in them not complying with the agreement at all. If the agreement is formalised, then the other party has legal options for enforcement.

What happens if mediation doesn’t work?

If family mediation is unsuccessful the parties may wish to continue negotiations with each other. These could be private negotiations or negotiations with support from their lawyers.

The parties may also pursue the matter through the court, where a decision will be made by a judge. As part of the family mediation process, the parties are provided with a certificate that states that they have attended and participated in mediation, and this certificate makes it possible to make an application to have the matter heard by the court.

The parties may also wish to attempt mediation again in the future.

Mediation vs Litigation – Is mediation better than going to court?

The Australian family law system does encourage parties to try to resolve disputes themselves, and this can be done between the parties privately or by using mediation services.

Mediation certainly has a lot of benefits, including it being less costly and more likely to encourage amicability between the parties, however, it’s important to remember that what works well for one situation may not for another.

The unique circumstances of your situation will determine whether mediation is better than litigation.

Talking to a family lawyer about your situation can help guide you in the right course of action in your situation.

How to prepare for family mediation

Here are some things you should do to help prepare for family mediation:

Seek legal advice

Legal advice can help you understand your responsibilities, rights and obligations. It can also help you to understand all of the options you have available to you as well as the actual mediation process.

They can also ensure that you have the relevant information for your situation. And they can learn your goals to aid in the negotiation process.

Identify the key issues you want to discuss and resolve

It’s important to figure out exactly what it is that you want, what is truly important to you and think about any concerns you may have. Mediation is not only about reaching the resolution but the journey to get there. The journey to your resolution allows you to air your concerns to the other party and helps you to gain perspective, which can lead to better outcomes more suitable for both parties.

In parenting matters it’s important to think about what is best for your child. Decisions should be made with their best interests at the forefront.

For property and financial matters, it’s a good idea to have a master list of all property that needs to be considered, think about the items that you would like to retain and items that you may be flexible to let go of. It’s also very important to think about your future needs and not just what you want right now.

Approach with an open mind

Mediation is most successful when the parties can cooperate, and an open mind makes this possible. While you may have goals that you wish to achieve, it’s important to take the time to listen to the other party and understand their perspective.

You should expect that you will need to compromise otherwise the likelihood of having any success is very low.

Even when you approach with an open mind you may find the process challenging and confronting however, the mediator is trained to facilitate the process and make it easier to manage.

How Unified Lawyers Can Help You

Helping you resolve family law disputes is what we do at Unified Lawyers. Our family law team is experienced in a wide range of family law matters, and we can help you every step of the way. When it comes to family law mediation, we can provide you with legal advice, prepare you for mediation, represent you in mediation negotiations, and support you throughout the whole process of family mediation.

We have offices based in Brisbane, Melbourne and Sydney and also help people Australia-wide. Get started with us today by giving us a call on 1300 667 461 or booking a consultation online using the button below.

Taylor Reardon Team Member Picture.

Taylor Reardon - Family Lawyer

Author
Taylor joined the family law and litigation team at Unified Lawyers in 2019. Taylor has completed a Bachelor of Laws and Bachelor of Arts in Communication (Social and Political Science) at the University of Technology Sydney and holds a Graduate Diploma of Professional Legal Practice.

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