What is Mediation?
Mediation is a useful tool which can help you and your ex-partner come to an agreement and stay out of Court. It is an alternative dispute resolution method where an independent person (known as the Mediator) helps two or more parties reach a mutual agreement to resolve their family law matter. It can be used in all types of disputes, whether that be parenting, property, child support, or spousal maintenance.
What are the benefits of Mediation?
There are numerous benefits to attending Mediation, including:
- It is faster than resolving your matter through the Court system, which can often take upwards of 2 years;
- It is more cost effective. Preparing a matter for a Court hearing is expensive given the amount of evidence usually required;
- It is confidential. During Mediation, you can make concessions or compromises without fear that this will be revealed to the Court and compromise your case;
- It empowers you. You and your ex-partner are in charge of the ultimate outcome and can tailor a solution which works for your individual situations. When you go to Court, the outcome is determined by a third party and you are bound to any decision they make; and
- It helps to preserves a positive relationship with your ex-partner. Rather than engage in conflict in the Court system, you work together on an outcome and are more likely to retain a positive relationship.
Types of Mediation
There are two common types of Mediation – Facilitative Mediation and Evaluative Mediation. In Facilitative Mediation, the Mediator asks questions to explore the rationale underlying the positions taken by the parties and assists in analysing options to resolve the matter. They do not offer their own recommendations nor provide advice as to how a Court might view the matter.
In Evaluative Mediations, the Mediator may point out weaknesses and strengths in each party’s case and will offer their opinion as to what a judge might be likely to do. They may also make recommendations to each party. This form of mediation is less common, however may be useful if your situation involves technical issues, such as in property law.
Family Dispute Resolution (FDR) is a form of Facilitative Mediation, and the most common form of Mediation used in family law disputes in Australia. During FDR, families discuss the issues and consider their options, and are encouraged to focus on the wellbeing of their children. Children can be involved through ‘Child-Inclusive Mediation’, where they are asked about their experiences, views, and what parents can do to create a positive environment for them. They are not asked to come up with resolutions themselves. During such a process, a Child Consultant is appointed to speak with the child, obtain their views, and communicate them to the parties.
It is compulsory in Australia to attempt dispute resolution prior to commencing family law proceedings in Court. There are some exceptions, such as where an application is urgent, there is family violence or child abuse, or a party is unable to participate effectively.
What is the process for attending Mediation?
In the case of a property dispute, before attending a Mediation, parties will need to exchange financial disclosure material. This ensures that you each understand the assets and liabilities that need to be distributed. It is usual practice to create a balance sheet setting out all of these assets and liabilities, as well as their value. If there is a dispute as to value, an independent valuation can be obtained. If there is still a dispute, this can be discussed at the mediation.
Once you have decided to attend mediation, you will need to agree upon a mediator, as well as the process for the mediation. You may come across the term ‘lawyer-assisted mediation.’ Mediations, whether Facilitative or Evaluative, can take place with just the parties and the mediator, or it may involve the parties’ lawyers. If lawyers do not attend, they can help you prepare before the Mediation.
You will also need to decide whether or not you wish to engage directly with your ex-partner. You may decide to attend a shuttle mediation, where each party remains in separate rooms and the mediator will go back and forth between the two of you. If you are comfortable engaging directly with the other parties, a Mediation can take place with all parties in the same room.
At the beginning of the Mediation, the parties will each have the opportunity to make an opening statement, where you set out your concerns and goals. The mediator will also provide a brief statement.
Following this, the mediator will facilitate a joint discussion, asking questions to identify potential areas of agreement. The mediator will also hold individual sessions with each party, allowing each party to share confidential information and brainstorm potential solutions.
Often, one party will then prepare a proposal, commencing the negotiation process as the proposal is reworked. The mediator will encourage problem-solving, helping to provide solutions and facilitate the discussion.
How can I prepare for Mediation?
It is important that each party is prepared prior to attending so they can make best use of their time with the mediator. As such, we recommend that you:
- Gather any important documents. Most of these will have been provided through the disclosure process, however you should consider whether any new documents or information have now become relevant;
- Make a list of your goals. The matters in issue are often extensive, and having a list of your goals will ensure that you do not forget anything important; and
- Be open-minded and prepared to compromise. You will not come to an agreement if you refuse to move from your position. Mediation requires both parties to compromise and have realistic expectations.
What happens if Mediation fails?
If parties cannot come to an agreement during the Mediation, there are several options, including:
- Attempting another Mediation at a later date. Sometimes, Mediations fail due to a lack of information, disclosure, or preparation. Once parties have all the information needed, they may be in a better position to reach an agreement;
- Further negotiations. Mediation may provide a starting point for offers to be exchanged. These negotiations can continue after the Mediation;
- Other alternative dispute resolution methods. You may attempt another method such as arbitration, where a third party selected by the parties (typically a senior lawyer or barrister) makes a binding decision on your matter. See our article about arbitration for more details; or
- Commence Court proceedings. If you intend to seek orders for parenting, you must first have participated in FDR. The Mediator (known as the FDR Practitioner) will issue a Section 60I Certificate confirming that a genuine attempt was made to resolve the dispute by FDR. You are required to file the certificate with the Court application.