Mediation is increasingly becoming a preferred method of resolving family law disputes for both clients and legal practitioners alike, with litigation often now seen as a last resort. The reasons for this are many and varied.
What is mediation?
Mediation is a process in which a mediator, being an impartial third person, is engaged to facilitate discussions between the parties, with the view to reach a fair and equitable resolution.
Mediations can be either direct mediations or lawyer-assisted mediations.
Direct mediations involve the parties and the meditator, whereas lawyer-assisted mediations include the parties’ lawyers who assist with negotiations and provide advice throughout the mediation process.
Benefits of mediation
There are several benefits to attempting mediation. Some of the benefits include:
- Time & cost: the costs are often significantly reduced if a dispute is resolved at mediation, and the time delays associated with Court proceedings can be avoided;
- Control: mediation allows the parties to maintain a level of control over the outcome of the dispute. With the assistance of the mediator, and lawyers (if lawyer assisted), a mediation aims to promote open discussions and negotiations. This type of environment can create opportunities for the parties to generate options that may have not been considered previously.
- Satisfaction: the parties often feel a greater level of satisfaction if their matter settles at mediation. This is because it is the parties who have decided on the outcome, rather than leaving the decision to a Judge at trial.
- Stress: litigation is stressful, costly, lengthy and unpredictable. Mediation offers an alternative that is cost effective, informal, flexible and less adversarial by nature.
- Confidential: the negotiations between the parties at mediation are confidential. This allows for open and honest conversations that can assist in resolving the dispute.
If mediation is successful, then the parties’ lawyers can arrange for the agreement to be made into Consent Orders or a Financial Agreement and the settlement then becomes binding on the parties.
Mediation in Parenting Matters (Family Dispute Resolution)
The Family Law Act 1975 requires that a party who intends to issue Court proceedings in a parenting matter, first make a genuine effort to resolve the dispute by Family Dispute Resolution (“FDR”).
If FDR is unsuccessful, a certificate under section 60I of The Family Law Act (“s60I Certificate”) must be obtained from a mediator who is specially accredited as a Family Dispute Resolution Practitioner (“FDRP”) under the legislation.
Upon receiving a s60I Certificate from a FDRP, a party may proceed with making an application to the court seeking parenting orders.
A s60I certificate will state one of the following five things:
- the other party did not attend the FDR;
- you and the other party attended FDR and made a genuine effort to resolve the dispute;
- you and the other party attended FDR but one or both of you did not make a genuine effort to resolve the dispute;
- the Family Dispute Resolution Practitioner decided your case was not appropriate for FDR; or
- the Family Dispute Resolution Practitioner decided it was not appropriate to continue part way through the FDR process.
The cost, stress and nature of the adversarial system can permanently strain parenting relationships and make co-parenting extremely difficult into the future.
If FDR is successful, the parties are assisted in building a working relationship that ultimately benefits the children of the relationship.
Is mediation right for you?
While Court proceedings may be necessary and a trial unavoidable in some cases, it is always important to consider whether mediation is appropriate for you.