Mediation is a form of dispute resolution which involves both parties to a dispute with an independent third-party present as the mediator to help facilitate an agreement between parties without the need to go to court.
Mediation can be a cheaper and faster way of resolving a dispute than attending court.
Family Dispute Resolution (FDR) is a special type of mediation specifically for family disputes, and is a compulsory precursor to court proceedings, unless an exception applies.
Relationships Australia are a great resource for separating couples wishing to mediate, they provide FDR at a low cost and have a number of resources available.
If possible, legal advice should be sought prior to mediation.
Understanding that every situation is unique and comes with its own set of challenges, we at Matthies Lawyers are here to provide the expert advice and guidance you need to navigate these tricky times.
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Understanding Mediation and its Role in Family Law
FDR can help separating couples resolve disagreements about parenting arrangements and property settlements. For some cases, it may be appropriate to resolve both parenting and property matters as part of the same FDR process.
Mediation can occur either jointly, that is with both people in the same room, or more commonly, as a shuttle mediation where parties are in separate rooms and the mediator assists with communication between both rooms.
Mediation can also be legally-assisted where parties are supported by lawyers during the mediation process.
In most family law proceedings, a court will require parties to provide a certificate to prove they have engaged in FDR.
There are occasions where FDR may not be appropriate, for example, where there is family violence or child abuse, or where there is an intervention order in place. In this case the parties will need a certificate from a provider such as Relationships Australia stating that FDR is not suitable for their case.
The Mediation Process
Mediation in family law follows the following process:
- With the help of the mediator, identify the issues that need to be resolved. If lawyers are acting, a position paper should be exchanged between the parties prior to mediation;
- At mediation, the parties are supported to communicate effectively and respectfully with each other;
- Parties are encouraged to explore and consider different ideas and options and to firstly work out what they agree upon;
- The parties negotiate options with support from the mediator and if lawyers are involved, with the assistance of their lawyers;
- If possible, parties are encouraged to come to an agreement about all or some of the matters disputed. If the mediation is with lawyers involved, then Heads of Agreement or proposed Consent Orders can be drawn up regarding property and or parenting matters, for both parties to sign.
Where children are involved, parties are to always focus on the best interests of the children.
Benefits of Mediation in Family Law Disputes
Mediation comes with a number of benefits including:
- Resolving matters at Mediation is usually less stressful than going to a hearing before a judge, and it means the parties have more control over the final outcome rather than having it imposed on them from the bench;
- Resolving matters at mediation will be timelier and more cost effective than going to trial;
- Resolving at mediation may prevent further conflict as mediation allows for cooperation; and
- Parties have the benefit of having an impartial third-party present (the mediator) while still having control over the outcome.
Parenting Arrangements in Mediation
Mediation can help parents to decide on living arrangements for their children, arrangements for child support and financial support and other parenting matters such as responsibility for the child.
When agreement is reached, arrangements can be set formalised into Parenting Orders which are filed with the Court.
Parties may also agree to enter into a Child Support Agreement covering matters over and above those considered by Services Victoria when assessing the level of child support payable, for example if parents agree that they want their child to attend private school or a range of extra-curricular activities it would be advisable to enter a binding Child Support Agreement.
The Role of Family Lawyers in Mediation
It is important to consult a family lawyer prior to mediation to obtain legal advice in relation to the distribution of assets and to ensure proposed parenting arrangements are in the best interests of the children.
Lawyers can also assist to finalise any agreements made during the mediation process. Additionally, family lawyers can explain how the mediation process works and reduce any stress or animosity felt by a party engaging in mediation.
As mediation is required by the Courts, parties are usually better off engaging in mediation through Relationships Australia first, and if they can resolve matters from there they can instruct their solicitor to formalise the agreements.
If they cannot resolve at mediation with Relationships Australia, and the matter has to go to Court, parties should bear in mind that the Federal Circuit and Family Court of Australia requires all parties to mediate after proceedings are issued, whether or not they have already attempted mediation.
At mediations required by the Court, most parties who can afford it will be represented by both a barrister and solicitor, and also have the assistance of a mediator, who will usually be a former Registrar of the Court, or a family law barrister.
Most Family law disputes will resolve at mediation provided both parties are prepared to be reasonable.
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Kate Scolyer – Solicitor– Matthies Lawyers
Should you wish to obtain advice regarding your family law matters, please contact Matthies Lawyers for an obligation-free consultation or call +61 3 8692 2517 today.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice