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Family Law Mediation

When a relationship breaks down, it is usually a very emotional time for everyone involved. The parties involved may experience feelings of grief, sadness, depression, and anger. Practical matters need to be attended to and heightened emotions may make it difficult for parties to make decisions, especially if there is animosity between the parties. Going to court is one way of resolving these issues without the parties to the relationship having to work together to find a resolution. However, this process can be lengthy and also very costly. As an alternative to court, there are various dispute resolution options to assist parties to broken relationships in coming to agreements about practical matters – such as parenting arrangements and property division. One of these dispute resolution options is family law mediation.

What is Family Law Mediation?

A mediator’s role is not to provide legal advice. It is also not to determine the outcome. In family law mediation, the parties work with an independent third party to find a resolution. Rather than assigning blame, the process’s focus is on finding solutions and moving forward. The mediator is trained to facilitate the parties in reaching an agreement by helping them pinpoint the issues that need to be resolved, come to understand the other person’s viewpoint and come to an agreement about the issues that need to be resolved. The mediation process is confidential, and information that is shared during the process cannot be used in subsequent judicial or court proceedings. Some of the benefits of engaging in meditation include:

  • Time can be saved as a mediator can ensure emotional issues do not distract from the real practical issues that need to be resolved. Often a dispute can be resolved within a few sessions;
  • Legal costs most often end up being much lower than if parties proceed to court;
  • Parties can maintain more control over the decisions that are made than they would if the matter proceeded to a courtroom;
  • Mediation can sometimes pave the way for creative solutions to be made as parties retain more control over the outcome than if a decision were to be made by a courtroom;
  • As the emphasis of a mediation is not on winning or losing but rather reaching an agreement it is less likely the relationship will be further compromised than there is if the matter were to proceed to court;
  • The process is less intimidating than a court proceeding as it is more informal.

How does it work?

There are several options for how family law mediation can proceed. The format that mediation will take will depend on what the parties feel comfortable with and the state of their relationship.

Mediation can be held face-to-face. In a face-to-face mediation, both parties remain in the same room with one another and the mediator. The issues that need to be resolved are discussed, and the mediator will ensure the discussion remains on track towards resolution.

Another possible arrangement for mediation is sometimes referred to as a shuttle mediation. With this approach, both parties remain in separate rooms, and the mediator “shuttles” between them relaying to each party what is said by the other. Sometimes mediation may start face-to-face for some issues and then later proceed to a shuttle mediation for others.

If it is impractical to meet in the same location or the parties do not feel comfortable doing so, then a teleconference mediation or phone mediation can also be arranged. A teleconference or phone mediation can follow the same format as either a face-to-face or shuttle mediation.

Sometimes a mediation will only require one session for a complete resolution to be reached. However, in other circumstances, several sessions may be required. How many sessions are required will depend upon the circumstances of each case. In general, a mediation session will be between three and six hours.

Preparation for mediation

In order to ensure most is gained from mediation, it is helpful to prepare thoroughly. It is important that parties share all relevant information and documents with one another and the mediator, prior to mediation. This will assist the mediator in determining which issues are those that need to be resolved. It may be helpful for a party to a dispute to have a discussion with or meet with the mediator prior to the mediation about any queries or concerns about mediation.

If the issues that need to be resolved relate to property matters, then the information and documents that need to be prepared and shared before mediation, and then considered at mediation include the following:

  • Documents relating to the financial situation; and
  • Details of the financial contributions that each party made to the marriage; and
  • Details about the financial needs of each party going forward.

If the issues that need to be resolved relate to parenting issues that it is important to consider and share information on the following prior to mediation:

  • The responsibilities each party takes for parenting, and intends to take in the future; and
  • The type of care and living arrangements the children currently have and what the parties would like for their children in the future.

Sometimes children may be involved in the mediation process if this is considered appropriate. If this is the case, other professionals, such as counsellors, can be involved to assist the children in feeling comfortable.

What happens after mediation?

If a resolution is reached at mediation, it probably won’t be formalised on the same day. The agreement reached will need to be properly drawn up. It will then need to be formalised either as a court order or as a binding financial agreement. 

If no agreement is reached at mediation, you will need to continue to negotiate, or you may need to proceed to court to have your issue resolved.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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