Mediation is a valuable and widely utilised method for resolving legal matters. This alternative form of dispute resolution is particularly valuable when it is desirable to maintain a relationship with the other party after the dispute, as is often the case in family law matters. Mediation offers a collaborative and less adversarial approach to addressing family law issues related to separation, divorce, parenting, property division, and more. This article explores how mediation works, when it can be used, the benefits it offers, what to do when it does not work or may not be appropriate, and how to prepare for family law mediation.
How Does Mediation Work?
Mediation is a structured process in which an impartial third party, known as a mediator, assists parties in reaching agreements on various legal issues. Typically, there are several different stages of mediation.
The first stage is the initial meeting between the parties and the mediator. The mediator will explain their role in facilitating communication and negotiation and describe the mediation process. The mediator may also use this opportunity to ask each party to outline their understanding of the issues in dispute.
The next stage of the mediation is information sharing. The mediator will prompt the parties to share relevant information, documents, and concerns about the issues. Transparency and open communication are crucial for effective mediation. For this reason, mediation is often undertaken on a “no prejudice” basis, meaning that the parties can freely share information to try and reach a solution, without this information being used against them in any later court action.
After the key information has been shared by both parties, the negotiation stage will begin. The mediator will guide discussions and help the parties to explore possible solutions. Skilled mediators use various techniques to foster communication and encourage compromise. This stage is usually the longest in duration and may take several hours or an entire day to try and reach a solution.
Of course, the final stage of the process – the agreement – does not occur in every case. However, if the parties do manage to reach an agreement on one or more issues, the mediator will assist in documenting the agreement.
Parties who were not represented by a lawyer during the mediation will often seek independent legal advice at this stage to review the agreement before finalising it. Once the agreement is reviewed and accepted, it may be presented to the court for formalisation as a legally enforceable agreement.
When Can Mediation Be Used in a Family Law Matter?
Mediation can be used for a range of family law matters but is mostly used to negotiate parenting and property disputes. Even if mediation does not result in a complete resolution for these matters, it often helps narrow down the issues in dispute, making court proceedings more focused and efficient.
Mediation is not only useful when there is a conflict, it can also be a good environment for separated co-parents to create parenting plans, make decisions about parenting, and agree on how to parent their children. Even parents with otherwise good co-parenting relationships may find mediation useful when dealing with some issues. For instance, co-parents who struggle to agree on one or two matters where each feel strongly (such as whether or not to raise their child in a particular faith) may benefit from the presence of a neutral third party guiding them to a compromise that works for both.
Separated parties can also use mediation to negotiate the division of assets and liabilities, including the family home, finances, investments, and superannuation. Mediation can be particularly helpful when a property settlement involves complex issues. For instance, if a main asset in the property pool is a family business that must continue to operate to retain its value, dividing this asset may require complex negotiation to enable a fair and equitable outcome. Mediation can also allow discussion of issues such as spousal support, especially when this forms part of a broader agreement about the division of the property pool.
The Benefits of Mediation
Mediation offers numerous benefits. Perhaps most importantly, parties in a mediation have greater control over the outcome compared to other options such as applying to the courts for a decision about their family dispute. This control can give the parties a sense of empowerment and ownership of the solution, as they have actively participated in crafting an agreement that works for their unique situation.
The collaborative nature of mediation can also help to reduce animosity and improve post-separation relationships. This is particularly important for co-parents, who will potentially need to continue to work cooperatively for many years. Because mediation prioritises the best interests of the children and promotes child-focused solutions, it is consistent with the approach of the courts to parenting disputes. Of course, even in family cases where no children are involved, most parties will benefit from participating in a system which is less adversarial and inflammatory than traditional litigation.
Mediation often leads to a quicker resolution compared to lengthy court processes, which can take months or even years. As a result, mediation is generally more cost-effective than litigating in court, as it typically requires fewer legal fees and court-related expenses. Mediation is also more flexible than litigation, as it allows the parties to decide which issues are important and need to be explored.
Finally, as mediation sessions are confidential, they generally foster open and honest communication between parties. For some parties, the confidential nature of this process is of the utmost importance, as the issues included in a court case are a matter of public record.
When Mediation Doesn’t Work or May Not Be Appropriate
While mediation is effective in many family law cases, it may not always be appropriate or successful in every situation. For instance, if there is a significant power imbalance between the parties, mediation may not provide a fair forum for negotiation. In particular, mediation is often not safe in situations involving domestic violence, intimidation, or threats. Similarly, in cases where urgent decisions are needed, such as child safety concerns, immediate court action may be necessary. In such cases, seeking legal protection should be the priority.
In addition, mediation requires both parties to be committed to the process and willing to compromise. If one or both parties are unwilling to negotiate in good faith, mediation may not be productive. Finally, in some highly complex financial or legal matters, mediation may not be the most suitable vehicle for resolution. Such cases may require the expertise of a family lawyer and, potentially, court intervention.
Preparing for Your Family Law Mediation
It is advisable for all parties to seek legal advice prior to mediation. Even in cases when lawyers will not be at the mediation, it is still wise for each party to consult with a family lawyer before mediation to understand their rights, responsibilities, and the potential legal outcomes.
Both parties should ensure that they collect all relevant documents, financial records, and information about the issues to be discussed. A solution is much more likely to be reached on the day if exact figures and facts can be provided.
There is also emotional and mental preparation required prior to a mediation. A successful mediation is more likely when the parties have prepared emotionally for the process, understanding that mediation may involve difficult discussions and compromises. Each party should identify their goals and priorities for mediation, including what outcomes they hope to achieve (the “best case” scenario) and the outcome that they can accept (the “worst case” scenario).
If you or someone you know wants more information or needs help or advice, please contact us on 08 8443 4888 or email [email protected]. Our Dimitra Tolis is a Nationally Accredited Mediator, trained by the Australian Institute of Family Law Arbitrators and Mediators and can conduct your mediation with or without lawyers at our purpose built facilities.