Do I need to attend mediation in my family law matter?

Since 2021, all parties involved in family law disputes must participate in Family Dispute Resolution (FDR) as an initial step in resolving their issues. While several methods of FDR exist, this article focuses on Mediation, the most commonly employed approach in family disputes. 

 

Understanding Mediation:

Mediation is a dispute resolution procedure where an impartial third party, known as the Mediator, aids two or more parties embroiled in family law disputes, often parents or former spouses, in reaching a mutually agreeable resolution to their disagreements concerning matters such as parenting, property, child support, or spousal maintenance.

Mediation can take different forms, including sessions involving both parties and their legal representatives, or sessions solely with the parties and the Mediator, especially when they are unrepresented or opt for a lawyer-free approach. In some cases, shuttle mediation is appropriate where the mediator moves between interacting with each party, rather than the parties engaging directly.

The Mediator's role is to facilitate discussions in a neutral and safe environment. During these discussions, the Mediator listens to the contested issues, takes into account each party's concerns, assists the parties to propose and reality test potential avenues for resolution while establishing terms to conclude the dispute.

Mediation outcomes can vary; some disputes are fully resolved during the process, while others may resolve only some issues as interim measures until another mediation session. Sometimes issues cannot be resolved , prompting the parties to decide whether to proceed to court or arbitration for remaining matters.

The two fundamental principles of mediation are:

1. Neutrality: The Mediator is an unbiased, independent individual.

2. Confidentiality: Parties can freely discuss and negotiate without fear that their statements will be disclosed, which is especially crucial when litigation is involved.

 

Preparing for Mediation:

Before entering into mediation, it is crucial to:

• Identify Key Issues: Determine the main issues you wish to address during the mediation process.

• Consider Opposing Views: Try to understand your former partner's or spouse's perspective and their desired outcomes.

• Explore Potential Outcomes: Be open to various possible resolutions, as this facilitates negotiation.

• Seek Legal Advice: Understanding the principles of Family Law before attending mediation will help you to establish your bottom line in reaching fair and equitable agreements.

• Compromise: Understand the consequences of failing to resolve the dispute at mediation and the potential outcomes if the matter proceeds to court or arbitration, and be prepared to compromise to reach an agreement.

 

Parenting Disputes:

For parenting disputes, where you aim to reach agreements regarding living and financial support arrangements, consider:

• Residential Arrangements: Discuss where the children will reside.

• Special Occasions: Plan for important events, like school holidays.

• Logistics: Address practicalities such as transportation between homes, schools, and activities.

• Decision-Making: Determine who will make decisions about education, health, and extracurricular activities, and how information about these matters will be shared.

• Financial Matters: Discuss child-related expenses and how they will be managed.

 

Property Disputes:

For property disputes, where you intend to separate finances from your former spouse, consider:

• Asset Assessment: Compile a comprehensive list of assets, liabilities, superannuation, and financial resources (the asset pool).

• Document Valuations: Bring valuations or appraisals that substantiate asset values.

• Financial Records: Present documents showcasing your financial situation and that of your former spouse.

• Financial Guidance: Seek financial advice, especially regarding borrowing capacity or lump sum payments.

• Tax Implications: Obtain tax advice, especially if trusts, businesses, partnerships, or companies are involved.

• Personal Preferences: Decide which assets you would ideally like to retain.

• Contribution Assessment: Reflect on your contributions to the relationship, both financial and non-financial.

• Financial Future: Contemplate your financial situation now and in the future, including income, earning capacity, health, and potential financial support from, or of, others.

 

What to Expect During Mediation:

Having legal representation, such as a family lawyer, may be useful, although this has to be weighed up against the cost of their attendance. They can assist with negotiations, explain offers, and help formalise agreements.

If you opt for mediation without legal representation, it is advisable to seek prior legal advice from an experienced family lawyer. This ensures your offers align with potential court outcomes and allows you to assess the fairness of your former partner's offers. If you do not wish to obtain legal advice, you should familiarise yourself with the four-step process of determining property settlements and current best practices for co-parenting.

Mediation is a pivotal step in resolving family law disputes, offering a neutral and confidential forum for parties to reach mutually beneficial agreements. Proper preparation and, when appropriate, legal guidance can significantly enhance the effectiveness of the mediation process

 

Interested in attending Mediation?

Email me at christine@divorceresource.com.au with a brief outline of your circumstances, and I will reply with some options to help you move forward.

Published by:

Published by, Christine Weston
Founding Director and Creator of Divorce Resource
Australian Nationally Accredited Mediator and Divorce Coach

The information in this article is general in nature and should not be considered legal advice. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.