Why is mediation important in a family law matter?
In family law matters, there is a requirement for parties to try to resolve disputes by making a genuine attempt to negotiate and reach agreement on the issues in dispute.
This includes any matters relating to family law however, primarily it includes reaching agreement regarding care arrangements for children and / or the division of relationship property.
Negotiations can occur through an exchange of written letters or telephone calls as well as through mediation. Often the best method of negotiation is through mediation. This is because all parties are brought together on the same day (not necessarily in the same room) and with both parties ideally having a genuine understanding and desire to reach agreement on the issues in dispute.
So, why is mediation important in family law?
There are numerous reasons as to why mediation is important in family law including as follows:
Mediation can resolve matters without having to commence an application in the Federal Circuit and Family Court of Australia (“the Court”) which can be costly, time consuming and entrench one or both party’s positions in litigation.
Mediation, particularly undertaken early in a family law matter, can ensure parties remain amicable or at least civil with one another.
Mediation can be relatively easy to set up and arrange.
Mediation is flexible and can be conducted in an informal manner designed to help facilitate agreement and the flow of discussion.
The discussion during a mediation is confidential as are the offers of settlement put forward during the mediation process.
Multiple mediation sessions can be arranged where appropriate.
If successful, mediation can bring an end to the legal dispute between parties.
Parties can feel empowered by the fact that agreement has been reached and they directly reached it between themselves without Court determination.
Although it is necessary in family law matters for parties to genuinely attempt to resolve matters by agreement, mediation specifically can be that vital step in reaching agreement due to the nature of mediation and process of bringing parties together to discuss issues of contention.
So, what is mediation?
Mediation is an event, set on one day, where all parties negotiate the issues in dispute and attempt to resolve matters.
A mediation is facilitated by a mediator who is a neutral third party. Usually, a mediator is someone who has experience in family law such as an experienced family lawyer, a barrister, a family dispute resolution practitioner or even a retired judicial officer such as a former Judge or Court Registrar.
The role of a mediator is to facilitate the flow of discussion by identifying key issues for discussion and attempt to breach differences in those key areas of discussion.
Importantly the mediator is impartial. That is, they do not express a view as to the issues in dispute. They can, however, express a view if they are requested to do so by the parties and they agree to do so.
So, how does mediation work?
One party will invite the other party to participate in mediation. Then on the agreed day and time, together with the agreed mediator, the parties and the mediator will start discussing the issues in dispute. This discussion can occur in the one room however often it is conducted by way of a “shuttle” conference were the mediator moves between rooms and the parties stay in separate rooms.
Usually, mediation will occur at a venue such as a lawyer’s office, barrister’s chambers or a neutral location such as conference rooms available for hire or through a support service offering mediation services through Family Dispute Resolution.
Mediation can occur with or without legal representatives. If no legal representatives are present, then each party should ideally have received legal advice from their family lawyer prior to the mediation so that the mediation is productive, effective and only relevant matters are discussed. Most often mediation will occur with a lawyer present who will put a client’s case forward to the other party’s lawyer and the mediator.
Mediation can also occur via telephone or via video conferencing such as Zoom or Microsoft Teams.
Where it is practical to facilitate an “in person mediation” then that should be the preference however if the only option to conduct the mediation is via another remote means then it is better to arrange the mediation via that remote method to ensure mediation occurs.
Mediation is confidential. Parties will often sign “mediation agreements” before participating in mediation to confirm that the discussions remain confidential and cannot be used later against a party. That is, parties can put forward settlement proposals which might be much more generous than they might otherwise put in an attempt to resolve matters at the mediation. However, if the matter proceeds further (such as a Court application is required because agreement has not been reached) they may not be so generous in their position.
So, when does mediation occur in family law matter?
Mediation can occur at any stage after separation. Ideally for mediation to be successful:
In parenting matters the issues are defined and, in property matters, the asset pool available for distribution between the parties has been identified and quantified; and
Where parties are conducting the mediation without lawyers, the parties should have each received legal advice about the issues in dispute. That way parties will be aware of what is reasonable and not reasonable when they participate in mediation.
It is a requirement to participate in mediation before a Court application is made in the Court for both parenting and/or property matters.
There are exceptions to this requirement such as if the matter is urgent, mediation is impracticable or the other party refuses to participate in mediation. Generally, mediation will still occur even where family violence is apparent or alleged in a family because:
the mediation can occur with the assistance of a lawyer to represent the party who is the alleged victim of family violence;
the mediator can ensure no family violence occurs during the mediation; and
the location and style of mediation can be specifically chosen to negate any potential for or risk of family violence.
The aim of the requirement of attempting mediation before Court proceedings are issued is to reduce the matters before the Court (reducing legal costs and legal delays in family law matters) and for parties to only use the Court process when it is clear that no other avenue of resolution is available.
Even after a Court application has been filed with the Court, the Court will usually require the parties to participate in mediation as one of the required Court events. Mediation while the parties have proceedings listed will take place either through Court assisted/facilitated mediation or through a private mediation. Court matters cannot usually progress to a final determination by a Judge without the parties first having genuinely tried mediation on at least one occasion during the Court process.
There can also be more than one mediation that occurs in a matter. There might be several mediations because the first mediation did not resolve all aspects of the matter or if there are several complex matters to discuss and reach agreement on.
So, how can a lawyer assist in mediation?
Family law matters generally are very emotive and at times, emotions can run high. This may depend on what is being negotiated (eg care arrangements or division of property) and may also depend on what stage a party is at during the separation process.
Where possible taking the emotion out of the issues between separating couples is ideal. If a party engages a lawyer to assist them, that lawyer will hopefully act compassionately and with empathy, however they will be “one step” removed from the immediate emotional issues involved in the separation between the parties. This can be a real benefit.
Having an experienced family lawyer to assist and guide a party through the separation process including providing tailored advice for arrangements for children and the division of relationship assets is essential. This will help to ensure a party’s interests are not only taken into consideration but the best outcome is obtained as to what is in the best interest of the child/children and/or the best outcome in a range of what is fair and equitable in the division of relationship assets.
In summary, mediation in family law matters:
Is a key process;
Its importance and the potential it can provide to parties to resolve issues cannot be understated; and
It can be extremely beneficial to resolve matters between separating parties and also be pragmatic in helping to ensure separating parties remain amicable or at least civil with one another.
For further information on mediation in family law matters please contact:
Bridgette Kelly
Principal Lawyer
M 0438 714 965 | T 03 5225 5275
E bkelly@ha.legal
Tara Paatsch
Principal Lawyer
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal
