In Family Law property and parenting matters mediation is often a perfect opportunity to resolve complex disputes in a cost-effective manner, thus saving the parties significant stress, time and legal fees associated with litigation.
Mediation is a dispute resolution process in which a neutral third party, called the mediator, facilitates communication between the parties and assists in resolving the dispute without taking sides. The mediator's role is not to take control or impose constraints and rules on the parties, but rather to help the parties identify their needs, clarify misunderstandings, and explore potential resolutions. It is a facilitative role and is somewhat different to the role of a Registrar in a Conciliation Conference at Federal Circuit and Family Court.
It is important to emphasize that pursuant to the Central Practice Direction, all types of Dispute Resolution processes, such as mediation and conferences, whether conducted within the court system or externally, are considered confidential. As a result, any documents generated, offers extended, statements made, or concessions offered during or in preparation for these events cannot be used as evidence in court proceedings, except under the specific conditions outlined in Section 131 of the Evidence Act 1995 (Cth).
Mediation is often the preferred method of dispute resolution in family law matters for a number of reasons, which we will explain below. For non-urgent parenting matters, mediation is a strict requirement as the parties must obtain a section 60I certificate prior to commencing litigation. The requirement for this certificate can be waived for urgent parenting matters. For all other matters, mediation is also essentially unavoidable due to the requirements in the Central Practice Direction to make genuine attempts to resolve the matter in good faith prior to commencing litigation.
In addition, if the parties have not engaged in mediation before initiating family law legal proceedings, it is highly likely that the matter will be directed to mediation shortly after the initial court appearance and no later than within 5 months of the commencement of litigation.
In simple terms, some of the advantages of mediation can be summarised as follows:
Affordable: Going to court can be a costly and slow process. Mediation is usually cheaper and faster because it helps the parties to avoid lengthy court battles and related legal expenses.
Private: Mediation is a secret process, and talks during it are confidential. This helps keep sensitive details safe and prevents the parties from relying on any admissions made in mediation in order to advance their interests.
Adaptable: Mediation lets the parties involved control the process and result. They can make the process fit their needs, and the mediator can use different ways to guide talks and help everyone find shared ground.
Cooperative Success: Parties are more likely to follow agreements made in mediation, because they helped make them and want them to work. Mediation can help improve the relationships by encouraging cooperation and respectful communication. This is especially important in family law cases, where keeping a good relationship between separated parents is often key for the children's well-being.
To make private mediation work for your family law matter, parties should choose an experienced family law mediator, such as a family law barrister or a former judge. They will understand family law issues and help guide everyone to a solution.
Prior to mediation, both parties should talk to their respective lawyers about their legal rights and duties, collate and prepare important documents (i.e. exchange of financial disclosure and balance sheet preparation is vital), and decide upon their main objectives. This would assist in explaining their respective positions during the negotiation.
During mediation, both sides should be open-minded, willing to listen, and work together to find a solution that everyone accepts. It's better to focus on the reasons behind each side's view and look for creative ways to resolve the differences between the parties. Adopting a strict and adversarial legal approach to mediation is unlikely to result in a positive outcome for either side and should be avoided at all costs.
Mediation can be emotional and take time. Be patient, flexible, and open to new ideas.
Keep in mind that mediators can't give legal advice. Having a family lawyer by your side before, during, and after mediation to understand your rights and any agreements made, can be extremely vital.
Mediation can be an effective and valuable tool for resolving family law disputes relating to children and property matters. By providing a more cost-effective, confidential, and flexible alternative to traditional court proceedings, mediation can help parties reach mutually acceptable agreements that preserve relationships and prioritize the well-being of any children involved. By choosing the right mediator, preparing thoroughly, and maintaining a cooperative mindset, parties can increase the likelihood of a successful mediation outcome.