What is Mediation?
Mediation is an alternative to the traditional litigation process and is often engaged either prior to or in tandem with the Court process.
The mediation process is one by which parties on either side of a dispute can, with the assistance of an impartial and legally qualified mediator, highlight issues, formulate options, consider various alternatives and ultimately make decisions about particular outcomes.
This is achieved by the mediator facilitating communication between the parties, and assisting them to identify and respond to individual needs and interests, instead of focusing solely on “positions”, in order to reach agreement in relation to various matters,
including property settlement and arrangements for the children.
Mediation vs Arbitration
The mediator does not impose an outcome (like an arbitrator) but instead assists the parties to reach their own conclusion about settlement.
The parties’ solicitors then help to embody any agreement reached in Court Orders or a Financial Agreement.
Advantages of Mediation
The most obvious advantage of mediation is generally a faster, cheaper and more self-empowering alternative to litigation as the parties themselves maintain control of the process and focus upon what issues are important to them.
Family Dispute Resolution
Any case – no matter how complex the subject matter – is able to be referred to mediation. If parents are unable to agree on the living arrangements for their children after separation, the Family Law Act (1975) and Family Court Act (1997) impose an obligation to engage in mediation before making an Application to the Family Court.
This pre-litigation process is usually referred to as Family Dispute Resolution (“FDR”) and is conducted by an impartial family dispute resolution practitioner (“FDRP”). If one party refuses to engage in the mediation process, or the parties cannot reach agreement at mediation, the FDRP will issue a Section 60I Certificate which then enables the parties to file a Court Application.
Participants in family law disputes can also engage in family mediation at any time during the course of the litigation process, and a mediator can assist parties to settle disputes concerning a wide range of issues, including financial/property disputes; parenting arrangements; child support; spousal maintenance; contravention and enforcement of existing Orders; interim property disputes, and more.
Mediation is also extremely useful where there is only a narrow area of dispute between the parties, and all other issues have been resolved e.g. the terms of Inter-State travel with children; or the specific distribution of superannuation entitlements.
The Mediation Process
Mediation requires comprehensive preparation if the maximum benefits are to be achieved – the greater your knowledge and input into the process, the more positive the likely outcome will be.
If you are considering mediating your dispute or, indeed, have been ordered to do so, then you should seek advice from an experienced family lawyer beforehand.
Your lawyer will outline the process and clarify your legal rights, as well as suggest the provision of specific documents to help substantiate your claim. Most importantly, they will confirm whether your expectations are realistic in the circumstances:
- Where are your “red lines”?
- What for you is “non-negotiable”?
- What can you “live with”?
If agreement is reached at mediation, the outcome is not (unlike arbitration) enforceable unless and until the agreed provisions are embodied in a Minute/Application for Consent Orders, or a Financial Agreement.
The mediator is not permitted to make a decision. If, regrettably, no agreement can be reached, the matter can still proceed in the usual way through the Family Court, or further attempts at mediation can be made.
Get Expert Advice
DS Family Law provides professional, easily accessible advice in relation to all areas of mediation and Mediation-Style Conferences.
One of our Directors, Milos Supljeglav, is also an Accredited Family Law Mediator, Arbitrator and Family Dispute Resolution Practitioner.
For more information call DS Family Law on 9486 1766.
Let’s meet, and figure it out
For practical advice about what you should do next, please call to arrange a no-obligation initial consultation.