Mediation in Family Law

What is Mediation? 

Mediation is a process that supports families to resolve their parenting and property disputes without the need for court determination. 

Your Mediator is an impartial third party who is there to facilitate, support and assist you in discussing concerns and exploring options to resolve your dispute in a manner that is respectful and achievable for all concerned. 

Mediation empowers separating couples to make decisions that work for them and their children.

Is Mediation Compulsory?

Yes, in most situations. The Family Law Act 1975 requires parents to make a genuine effort to resolve their parenting disputes through mediation prior to commencing Court proceedings. 

There are some exceptions to this requirement including urgency and if your Mediator determines that mediation is not the right process.

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 also requires prospective parties to genuinely try to resolve their property disputes before starting a case through mediation. 

When is Mediation Not Suitable? 

There are some instances where mediation is not a suitable pathway for resolving conflict. This includes where there is an Apprehended Domestic Violence Order, there is a history of violence, there is an imbalance of power that would prevent a party from being able to negotiate or where the dispute relates to a point of law. Your Mediator will assess the suitability of mediation in your Intake appointment. 

Do we Need to be in the Same Room? 

Not always. Your Mediator will decide how the mediation is managed. If there are safety concerns a "shuttle" process may be used whereby the mediator moves between the two rooms to try and reach a resolution. There are pros and cons to this style of mediation which will be discussed with you. 

Can I Have a Support Person Attend? 

A support person may be considered with the consent of the other party. However, we suggest the support person not be a family member or a new partner as this may increase conflict in the mediation. A support person will be required to sign a Confidentiality Agreement and is generally not present during the joint session but in a separate room to provide support during private sessions. 

Can we do Mediation Online or Over the Phone? 

Absolutely. The vast majority of our mediations are conducted online. Your Mediator will ensure that each person is in a confidential space with no other people present and will require you to sign an Agreement stating you consent to mediate online or by telephone. 

Do I need a Lawyer for Mediation? 

Having a lawyer attend your mediation is optional but we do strongly encourage each party to obtain independent legal advice from a family law lawyer prior to mediation. Family law is complex, and it is important to understand how the law would be applied to your individual case if you were not to reach agreement in mediation.

It is crucial to obtain legal advice prior to negotiating property settlements. Sometimes, your mediator may only offer mediation if you have a lawyer present. Your mediator will discuss this with you after they have completed their suitability assessment.

How Long Does Mediation Take? 

This depends on the complexity of your dispute and the parties' availability. Generally, the mediation process, from start to finish, can be completed within a matter of weeks. Your Mediator will work with you to ensure that mediation is completed in the most suitable timeframe possible. 

How do I Prepare for a Property Mediation?

If the Court orders you to do property settlement mediation you must comply with the Court orders for providing documents to your Mediator. 

If you are attempting to resolve your property settlement before initiating a court application, you will be asked to provide the values of items prior to your mediation and will be asked to complete information about your contributions and future needs using a confidential online questionnaire. If values are not agreed to prior to your mediation you will likely need more than one mediation session.

How Can I Achieve a Positive Result? 

There are several ways of achieving positive results through mediation which include: 

• Choosing the right Mediator for you. Things to consider include your Mediators experience and qualifications, cost, availability and ability to explain the process to you in a way that you can understand. 
• Clearly identifying your needs, goals and aims. This will ensure that you identify realistic options for resolving your dispute. 
• Prepare for the Joint Session. Know where you are willing to compromise and where you are not. What is your Best Alternative to a Negotiated Agreement and what is your Worst Alternative to a Negotiated Agreement? We will help you to prepare for the joint session during your Intake appointment. 
• During FDR listen carefully to what the other person is saying. You may not agree with what is being said but listening will encourage similar courtesy to you. This is your chance to fully understand what it is causing conflict and allows you to begin working through the conflict.  
• Meeting in the middle is not always the right decision. If you can identify ALL possible solutions to your dispute, you are more likely to reach an agreement that works for all. 
• Ensure your proposed agreement is realistic. A good Mediator will NEVER challenge you but WILL challenge your ideas. For mediation to be successful any agreements reached MUST be realistic to avoid further conflict arising. 
• Consider what you will do and what the impact will be if your dispute is not resolved. What will it cost financially, emotionally and in time to take your dispute to Court? What are the other options available to you?  

What if Mediation is Not Successful? 

As an accredited Family Dispute Resolution Practitioner with the Attorney General's Department your Mediator must continually assess whether mediation is suitable. If at any stage during mediation it is decided that the process is no longer suitable, the Family Law Act 1975 (Cth) requires a s.60I certificate to be issued, allowing court proceedings to be commenced in parenting disputes. 

There is no such certificate for property matters, but you must attempt mediation to resolve property disputes before filing a Court application.