The Role of Mediation in Family Law Matters

Mediation has become an increasingly popular way to resolve disputes in family matters for some very good reasons.

Going to court for decisions about parenting, custody, maintenance and the splitting of financial assets might at first appear an easy course, but usually involves lengthy delay, high financial costs, and stress.

By contrast, mediation provides a far more informal and less costly means by which two now estranged people (and sometimes extended family) can reach an agreement they can both live with, and thereby move forward with their lives. Better yet, the process empowers each side of the dispute to mutually reach a satisfactory resolution, with the assistance of a trained, expert mediator.

In most cases, you can also seek the advice and guidance of your trusted legal representative before, during and after the mediation process, but it should be stressed that mediation is not an opportunity for lawyers to negotiate in an adversarial way outside of the courtroom. In mediation, the role of your legal representative is far more about advice and support in the quest for a workable solution to the dispute.

How mediation works

Under Australia’s family law system, mediation or dispute resolution is now a compulsory requirement for separated parents before they can apply to the court for parenting and/or financial settlement orders.

The only exemptions to this requirement are where:

  • The parties are formalising an agreement between them through the court via ‘consent orders’;
  • where family domestic violence or child abuse is present;
  • when you are responding to an application to court by the other parent;
  • a party is unable to properly participate due to, for example, incapacity or geographical location; or
  • a person has contravened and shown a serious disregard for a court order made in the last 12 months.

Under the Family Dispute Resolution (FDR) process, a neutral and impartial accredited FDR practitioner assists the separated couple to create their own parenting plan setting out parenting arrangements going forward. Part of the mediator’s role is to assess whether the FDR process is suitable for a particular family, taking into account any issues relating to family violence, safety, risks to children, the psychological health of the parties and any other issues which may make dispute resolution unsuitable in this instance.

The mediation environment is designed to facilitate a calm, civil atmosphere where both parents can discuss the issues in dispute, raise individual concerns and consider a range of options, underpinned by the primary consideration of the best interests of the children.

This process can involve one or more sessions in which the ex-couple come together in an appropriate, neutral setting to discuss the issues in dispute. ‘Break-out’ rooms are usually also available in which each participant can consult with their legal representative, should they have them present, and/or utilise ‘shuttle’ negotiation, whereby the mediator can go back and forth between two separate rooms with proposals from each party with the aim of achieving a mutually agreed resolution.

Where there are safety or family violence concerns, the mediation process can even be conducted via videolink or telephone. In these COVID-19 times, with the demands of social distancing, these options are generally more favoured for the foreseeable future.

Where children from the relationship are older or demonstrate a certain maturity, it’s possible for them to be included in the FDR process. This may involve the presence of a child psychologist or consultant who discusses the issues with the children and supplies their views back to the parents during mediation.

What happens after mediation

In the best case scenario, both parents can reach an agreement they can each live with and which also preserves a civil and polite basis for their ongoing relationship in raising their children.

The agreement can be recorded as a parenting plan which must be in writing, then dated and signed by both parents. This document can also include details on how anything agreed to can be changed in the future, as well as how to resolve disagreements or non-compliance with the agreement’s terms. It’s possible to revisit and renegotiate a parenting plan some time in the future if required.

If the mediation process itself does not result in an agreement, the discussion process may still result in a later informal agreement, or at least clarify and refine the issues to be discussed if the matter proceeds to court.

Where mediation does not result in an agreement, the FDR mediator can issue a ‘Section 60I’ certificate which allows an application to be made to a family law court. This certificate will attest to the fact that:

  • One party did not take part in the FDR process;
  • the parties attended and made a genuine effort to resolve the dispute;
  • the parties attended but one or both of you did not make a genuine effort to resolve the dispute;
  • the mediator decided the case was not appropriate for FDR; or
  • the mediator decided it was not appropriate to continue part way through the FDR process.

How legal advice can help

Speaking with family law specialists like Twohill Lawyers is highly advisable if you have recently separated and need advice on next steps. We have years of experience helping clients going through family separation, including advising on the suitability of mediation for their circumstances. We will simply and relevantly explain your rights and responsibilities in terms of the law, and assist you in resolving family and financial issues with your ex-partner without the need to go through the stress of the court process.

If you have any questions about mediation and how it can work for your family law matter, call us and speak to a member of our friendly team today on (07) 5562 0444.