Separation mediation is a compulsory first step where two parents are in dispute about the care of their children. Mediation/family dispute resolution is also a useful tool to negotiate asset division between two separated parties, without the need for court intervention. Mediation is a less formal and a less stressful way of resolving separation issues. Mediation involves the parties engaging a family law mediator, who acts as an independent third party, to help the parties to reach a compromise and resolve the conflict.
Why Separation Mediation is worth it
Mediation is the right choice to resolve most family law matters quickly and cost effectively.
Getting divorced in Australia is only one section of a big legal puzzle. Other pieces include property settlement, parenting agreements, child support and spousal maintenance.
Each piece on its own can become drawn out and expensive, financially and emotionally.
The family and federal circuit court system is currently experiencing extreme delays.
Financial or parenting applications filed today in the Brisbane Registry are unlikely to receive a final outcome until 2020 or later. A backlog is causing delays of up to three years. It is almost impossible to have your matter heard by a judge on an urgent interim basis, except for the most urgent parenting or financial matters.
The inability of the family courts to provide timely access to justice is causing people to give up hope and settle for orders that are not in their interests or the interests of their children. Resourcing of the family law system is in a state of crisis.
Part of the problem is that many matters before the family law courts do not belong there. These matters will settle well prior to a final hearing but not prior to spending many months or years in litigation, at a high financial and emotional cost.
The Family courts system is no longer being treated as a last resort.
What is Mediation?
Mediation is where an independent, neutral third party helps the parties to negotiate an agreement about the issues in conflict.
What is the role of the Mediator?
A mediator is a neutral party. the Mediator’s job is to assist each of you in the negotiation process by meeting with both of you, identifying the issues, the common ground and then exploring those issues.
How does Separation Mediation work?
At the mediation, you will each meet at the same location or sometimes you may be separated into different rooms. More recently we have been doing most of our mediations by zoom, in which case it is more common for the parties to remain separate for the entirety of the mediation process.
Over the course of the day, the mediator will speak to each of you and your solicitor (if present) about your respective positions and interests. Where invited to do so, the Mediator may express a view based on their experience and this may include reality testing your position at times in terms of your prospects of success if litigation is necessary at a later stage. However, the mediator remains at all times independent. Their role is to assist each of you communicate more effectively and to negotiate a compromise that is of each party’s choosing.
The goal is to end the day with a compromise agreement that you each can live with that resolves all or some of the issues in dispute.
Is Mediation compulsory?
Whilst some matters need to be litigated in the family courts because of the nature of the intractable dispute, most matters are amiable to alternate family dispute resolution through a process called mediation.
In a parenting matter, mediation is a prerequisite before a court application can be filed (except where certain exceptions apply).
In a property matter, the courts order parties to attempt to settle their issues through mediation, prior to the matter being set down for Trial.
You can make life easier by participating in a mediation, without going to Court.
Why mediate? In 9/10 cases, Mediation is the best and most appropriate way to resolve your family law issues quickly and cost effectively.
What if we reach an agreement at mediation?
The agreement, in a parenting matter, when signed becomes a Parenting Plan.
If you have reached an agreement with your former partner at the mediation and you seek to make your (property settlement or parenting) agreement legally binding, you will need to seek legal advice from an experienced family lawyer in order to have you agreement made into a Consent Order, which can then be rubber stamped by the court and it then becomes legally binding.
What are the benefits?
Whilst it is normal to want your day in court, there are many good reasons to give separation mediation a crack, even if a resolution seems unlikely, if only to narrow the issues in dispute:
Mediation is private and confidential
As a result, you can feel comfortable that everything discussed in the mediation remains confidential and cannot be discussed with other people or used against you in court, if an agreement is not reached.
Mediation resolves your issues much quicker than through the family law courts
As has been reiterated the delays of the family court system are untenable at present, with some matters taking 3 years before reaching a trial stage.
Mediation ensures a mutually beneficial, certain and predictable resolution
No one ever ‘wins’ in the family court system. There are however many losers, due to the financial and emotional costs associated with going to court. Further, what you believe you are entitled to and what you are actually entitled to do not necessarily align. The outcome is handed to you by a third party, not chosen by you or the other party and often parties walk away with an outcome they are not happy with.
Mediation on the other hand allows parties to control the outcome and find a win/win solution. A successful mediation will result in an agreement that everyone can live with which eliminates the uncertainty of a trial outcome.
Importantly, trials can also be appealed which takes time, money and further uncertainty in the outcome of your case. Mediated agreements are much more difficult to challenge and overturn.
Furthermore, if both parties are happy with the result and feel they had control over the decision, it becomes easier to accept and the agreement is more likely to be followed by the parties. This decreases the risk of further issues arising down the track.
Mediation preserves the co-parenting relationship
When two parties have control over the outcome, rather than having the decision dictated to them by a judge, they remain more respectful to each other throughout the process. In court, parties will hear family lawyers say negative things about them which causes stress to both parties and it is likely to have a negative impact on the co-parenting relationship. Mediation allows the co-parenting relationship to remain intact and reduces the emotional and psychological stress on the parties of the separation process.
Mediation helps to protect children from exposure to conflict
Where conflict is unresolved and court proceedings are commenced, the conflict between the parties usually worsens and the children are often exposed to this. Furthermore, whilst the Court may hand you a resolution this does not mean that the underlying issues which caused the conflict have been resolved. Where children are exposed to ongoing conflict between their parents this can have a lasting negative impact on their mental health and wellbeing and impact on their ability to form healthy relationships in future. These children who see their parents fighting are often fighting a war in their own mind to try and reconcile why one parent (one half of them) does not like the other parent (the other half of them). Mediation enables separating parents to keep their children out of the conflict and minimising the impact of the separation upon them.
Mediation Saves money
Court is expensive. Successful mediations either narrow the issues and therefore the time spent in court or a mediation can eliminate the need for court completely. This money can be better spent on your children or your post separation re-establishment expenses.
Mediation – a win win solution
Do you want to have control over your decision? Do you want a quicker, less costly outcome that you choose and have ownership of?
Mediation is the way to go.
If you are wanting more information about the process of mediation or other non-court-based options for settlement of your matter, please do not hesitate to call 3465 9332 or contact us to book a reduced rate initial consultation with one of our expert family law solicitors to have a confidential discussion about your individual circumstances.
If you are wanting more information about our family mediation services and the process when you book a mediation schedule an appointment with our Conflict Resolution Specialist, Courtney Barton today.
Updated 24/01/2023
