What Is Mediation In Family Law?
Mediation is an effective way to resolve disputes without having to go to court. It’s a great option for people who aren’t comfortable with the idea of going to court. And it has recently become mandatory for most of the people who do want to go to court.
What is mediation in family law?
Mediation is a process where two or more parties negotiate an agreement to end a dispute with the assistance of a neutral third party, the mediator, who takes on the role of umpire.
Why use mediation in family law proceedings?
Mediation is a cost-effective, faster and relatively low-stress method of resolving disputes.
Types of mediations in family law
There are two main types of mediation: pre-action and court-ordered mediation. Pre-action mediation takes place before a case on the dispute is started in court. Since September 2021, mediation is a compulsory pre-action procedure for most parties before a case can be started. Pre-action mediation is likely to be non-directive: that is, the mediator will allow the parties to generate their own solutions to the legal issue.
But if pre-action mediation fails and a case is started, there is still more mediation to come! Court-ordered mediation is now a standard part of the case management pathway after a case commences in a family court. The mediator in a court-ordered mediation is likely to be more directive. The mediator is likely to suggest ideas of settlement and express views about how the court is likely to see one or both of the parties’ cases, if they can’t come to agreement.
Even so, you are never required to reach agreement in mediation. You retain the option of simply walking away.
The process of mediation
Mediation is an informal process. Each party first meets with the mediator separately. The mediator may give the parties questionnaires to complete about the parenting or property issue in dispute so that everyone in the room has the information they need to make a sensible decision. They may also ask the parties to exchange certain documents, such as tax returns, medical reports and property valuations. Then the parties will meet together in a joint session with the mediator present. The joint session is likely to be much more productive if each party has privately sought pre-mediation advice from a lawyer beforehand. It is important to understand the range of your legal entitlements before you attempt to negotiate.
The mediation may be face-to-face, all together in the one physical room. Increasingly, however, mediations are held online. Additionally, it might be arranged that high-conflict parties could attend the mediation in two separate rooms–either online rooms or physical–with the mediator moving between them, conducting the negotiation. This is called shuttle mediation.
Lawyer-assisted mediations are also becoming more common, if both parties agree. In this mode, each party brings their own lawyer to help them negotiate.
How is an agreement in mediation formalised?
The mediator will be making notes about the points of agreement that are reached in the joint session. Many mediators may then prepare a summary document for each party to sign on the day. If the issues in dispute are about parenting, that document might be a parenting plan. If they are about property, that document might be called a terms of settlement. Either way, it is important to remember that an agreement reached in mediation is not legally enforceable, even if both parties sign it. If you wish to make your mediation agreement legally enforceable, you must apply to the family court for consent orders or make a binding financial agreement.
When should I consider using mediation in family law proceedings?
Mediation may be a good option for you if you are having trouble reaching an agreement with your partner privately, or if you want to settle a dispute in a court case that has already started. Family law proceedings are expensive and difficult and sometimes the outcomes are not what either of the parties want or had hoped for.
Legal support around mediation
Tribe Family Lawyers provides affordable, fixed-fee legal services to assist you:
- with pre-mediation legal advice about your entitlements at law
- to finalise the documents the mediator has asked you to complete before the mediation takes place
- by attending the mediation with you and helping with the negotiation
- by drafting documentation to make the agreement you reach in mediation enforceable
Make an appointment for a free case evaluation with Tribe Family Lawyers here .
For more about how to deal with disputes about money and property after separation, see https://tribefamilylawyers.com.au/financial-disputes-at-separation.