Mediation in Family Law Proceedings

Mediation is a dispute resolution process that can be attended by parties to a family law dispute in an attempt to resolve their property and/or parenting issues. An independent third party assists in facilitating the negotiations as to the issues in dispute to try and reach a settlement. This person is called a mediator.

In most instances, mediation is a compulsory step that the parties must participate in before engaging in the family law court process. However, mediation can occur at any stage of the family law process and parties can attempt to mediate multiple times.

While the parties can attend mediation alone, family law mediations are often lawyer assisted, particularly where court proceedings have been issued or the issues in dispute are very complex. In some cases, a barrister may also be briefed to represent a party at mediation. Lawyer assisted mediation can be a very useful tool in negotiating and reaching agreement with the benefit of on-the-spot guidance and advice. This can be of particular benefit in complex or high conflict family law matters.

Why use mediation?

Dispute resolution mechanisms such as mediation provides parties with a far more cost effective and timely avenue for resolving disputes compared to issuing court proceedings and waiting for a determination of the matter by a judge.

Pursuant to the Family Law Act and the Federal Circuit and Family Court of Australia (Family Law) Rules (“the Family Law Rules”), parties are expected to make a genuine effort to resolve their dispute. At the very least, parties are expected to attempt to narrow the issues in dispute prior to bringing the matter to court. Parties are therefore expected to meaningfully participate in mediation. This process also requires an exchange of information prior to attending mediation, such as each party meeting their financial disclosure obligations. During the mediation, the parties must also consider all reasonable offers of settlement proposed.

What is the mediation process?

In the weeks and days prior to mediation, the parties need to provide to each other and to the mediator, a wide range of documents including those filed in any court proceedings, expert reports and property appraisals or valuations. Any documents which are required to be disclosed pursuant to the Family Law Rules must also be exchanged prior to the mediation.

The length of time that a mediation can take depends greatly on the number and complexity of the issues being discussed, as well as the willingness of both parties to negotiate and actively engage in the process. The costs of engaging a private mediator vary, but generally should be split equally between the parties.

The parties can agree where the mediation will take place so that it is at a neutral location for example. During the COVID-19 pandemic, mediations were commonly conducted by video conference and this method can still be utilised if practicable and preferred by the parties, the mediator and/or their legal representation.

The discussions that occur during a mediation session are completely confidential. Therefore, if the parties cannot reach an agreement, concessions made or offers of settlement exchanged cannot be used as evidence in any subsequent court proceedings, unless otherwise with both parties’ consent.

There are different methods of mediation that different mediators adopt. Some methods do not require the parties to be in the same room together. In this method, called a ‘shuttle mediation’, the mediator and/or the lawyers move between private rooms with the parties in separate rooms to discuss the parties’ respective positions and offers of settlement. This method is often adopted in circumstances of high conflict between the parties, or if there are allegations of family violence for example.  

The mediator will work with the parties and their lawyers, if applicable, to assist the parties to negotiate by identifying and exploring options for settlement.

If an agreement is reached at mediation, the agreement can subsequently be formalised by way of an Application for Consent Orders to the court, or a Binding Financial Agreement.

If an agreement cannot be reached, the matter may then need to proceed to court, if court proceedings are not already on foot. However, this does not prevent the parties from continuing to negotiate through correspondence or attending a further mediation in the future.

Court proceedings are a costly, time consuming and often emotionally taxing process. If the parties are able reach agreement at a mediation then some of these costs, delay and stress of the court process may be avoided.

The family law team at Harwood Andrews regularly appear at mediations for our clients and can assist clients through the mediation process to pursue a timely and cost-effective resolution of their family law dispute.

For further information please contact:

Natasha Vassallo
Lawyer
T 03 5225 5237
E nvassallo@ha.legal

Tara Paatsch
Special Counsel
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal