Take Home Message
- Family Dispute Resolution (FDR) is required for parties involved in family law disputes since 2021.
- Mediation is a common form of FDR, where a third-party mediator helps resolve conflicts between the parties.
- Mediation promotes a confidential and comfortable environment for open communication and discussion.
- It is important to prepare for mediation by identifying key issues, consulting with a lawyer, and considering various outcomes.
- Mediation is a cost-effective and speedy alternative to court proceedings, allowing for customised and flexible solutions.
What is Mediation?
Since 2021, the parties involved in a family law dispute have been required to participate in a Family Dispute Resolution process (FDR). This is to help resolve the dispute. FDR comes in many forms, but the most common one for the majority of families is Mediation.
Mediation is an alternative dispute resolution method where a third-party helps you resolve the conflict. Invariably, the mediator is an experienced family lawyer or family law barrister. In most cases, family law mediations take place in a “shuttle mediation”, which is where the parties remain in separate rooms, and the mediator shuttles between them. For example, if one party makes a settlement offer for property, the mediator will relay that information to the other side. The mediator will relay that information to the other party. Let them digest it and then think about what they would like to say. The mediator will take the counterproposal to the other side when the parties are ready. Even when there are no domestic violence issues, it is rare that two family law mediators sit opposite each other. In family law, there’s usually too much conflict. The parties, when they reach that stage, can’t seem to agree. So, sitting next to your ex-spouse and hearing things you don’t approve of and saying things they won’t necessarily like is not conducive to a positive outcome.
Sometimes, mediation can lead to the final resolution of an issue. Mediation can also help resolve certain issues, but the parties may then decide to take their dispute to Court or Arbitration for the remainder.
Mediation has two main elements:
1. Neutrality means that the mediator must be an objective, independent person.
2. Confidentiality is essential, particularly when parties don’t want to share their information or if the matter is in court or is likely to go there. It is important to maintain confidentiality because it allows parties to have an honest and open discussion without worrying that their information will be shared with the Court.
Prepare for mediation
Before you begin mediation, it is important that you:
- You should identify the key issues that are important to you and those that need to be resolved during the mediation.
- Consider what the main concerns of your ex-partner or spouse might be and how they may want to resolve them.
- You can facilitate the negotiation process by considering a range of outcomes you are happy with.
You have consulted a lawyer and you are aware that:
- What will happen to your dispute or matter if you do not resolve it at mediation?
- You will be able to see the best and worst case scenarios if you decide to take your matter before a court or arbitrator.
Parenting Dispute Mediation
If you’re trying to resolve a dispute over parenting during mediation, and you want to come up with a parenting agreement, you might start by:
- Where will the children live?
- Include in your child’s school holiday schedule any special events that you or your child consider important.
- What transport will the children use to get to or from their school, their other activities or to or from their other parent’s place (including options for transport).
- Who will make decisions regarding the schooling, health and extracurricular activities of your children? It could also be about who has access to the information for children on these topics.
- How to manage the costs of raising children.
Property Dispute Mediation
It would help you to:
- List all assets, liabilities and financial resources of both you and your partner.
- Bring along any financial documents, such as appraisals or valuations that show the value of your assets, liabilities and financial resources.
- Bring documents that show your current financial situation and the position of your ex-spouse.
- If you plan to keep a home with a mortgage, or if you want to pay your ex-spouse a lump sum in cash, you should have financial advice.
- You should seek tax advice, especially if your assets include Trusts, Businesses, Partnerships, or Companies.
- You can decide what you want to keep from the pool.
- Take into consideration any contributions that you have made to the relationship.
- Consider your current and future financial situations, including income, earning potential, health concerns or conditions, if you have a partner or someone who supports you financially.
- Consider how your parenting arrangement will affect your financial situation if there is a parental element to the dispute.
Mediation: What to Expect
It can be a good idea to obtain legal advice before you engage in mediation. This type of legal advice will help you get clarity in relation to the burning issues that need resolution and also avail the opportunity of having your lawyer formalise the outcome of the mediation with consent orders. without the assistance of a lawyer. Legal advice will also help you to make offers that are appropriate and within the range that a Court would consider if they were to hear your case.
The mediator will issue a Section-60I certificate if the application is successful or not. This allows an application to be filed with a family court. The mediator can issue a Section 60I Certificate if FDR does not seem appropriate in a given case due to concerns about family violence, safety and risk to children or the ability of each party to negotiate.
According to the s. 60I(8) the parties receive a certification stating one of the following things:
- Both parties were present at the mediation and a real effort was made to settle the dispute.
- Both parties attended the mediation but neither party made a real effort to resolve the dispute.
- The mediation was not attended by one party because they refused to attend.
- The practitioner did not attend the mediation because he believed that FDR would be inappropriate.
The parties can reach an agreement and file a parenting plan with a court of family law without initiating legal proceedings. The agreement becomes legally binding after it is formalised and both parties must adhere to the terms. If necessary, parenting plans can be renegotiated and new consent orders are issued.
Benefits of Mediation
In contrast to a court process where a judge makes the final decision on your relationship problem, mediation in family conflicts allows the involved parties to have control and make the ultimate choice that suits them best. You have the power to determine the outcome, which imparts a sense of empowerment to the individuals as they participate actively in resolving their disputes, rather than having decisions forced upon them.
Comfortable and confidential
This method of resolving conflicts provides a comfortable environment where sensitive information and discussions are kept private, away from public scrutiny. The location, typically the office of a family dispute lawyer or mediator, is far more relaxed compared to a traditional courtroom.
Mediation promotes a confidential environment where all parties involved feel safe to openly communicate and discuss private matters with each other, as well as their mediators and lawyers.
Mediating family disputes is usually a more affordable option compared to going to court. This is because legal proceedings can be lengthy and costly, while mediation sessions tend to be significantly shorter and more economical. For example, the average time to resolve your family law dispute in the courts can be 3 years, in comparison to mediation which usually takes 1 day.
As previously stated, court cases can remain unresolved in the legal system for long periods of time. In contrast, mediation provides a means for parties to promptly tackle their issues and strive towards a resolution, bypassing the delays commonly associated with court proceedings.
Preservation of relationships
Ensuring connections remain strong is frequently a top priority during family conflicts, particularly if there are children affected. Mediation promotes working together and finding middle ground, fostering the preservation of significant family ties.
Customised and flexible solutions
Mediation allows for the creation of customised solutions that address the specific requirements of the individuals or groups involved.
Court-imposed rulings typically do not offer the same level of customisation and flexibility, as they require compliance with numerous rules and regulations. This can make an already challenging period in your life even more burdensome.