Mediation Can Resolve Family Law Disputes
The first step to Family Law matters is often mediation. Family Law disputes are highly emotional and involve many controversial issues relating to matters such as contributions made by the parties to the current pool of assets, parental responsibility for children of the relationship, and property division.
Family Law matters are sensitive matters and involve people at their most vulnerable. Mediation serves as an important alternative to traditional litigation pathways of resolving conflict.
What is Mediation in Family Law?
Mediation is a powerful tool in resolving Family Law disputes. Not only is it an expectation of the Court that parties genuinely engage in mediation before filing an Application for Parenting or Property orders, but it is also the first recommendation of Family Law legal practitioners in matters that cannot be resolved through private negotiations.
Mediation is a voluntary, confidential process in which a neutral third party, known as a ‘mediator’, assists parties reach an agreement. A mediator is not a judge or arbitrator and does not make decisions for the parties. Rather, they facilitate communication between the parties and assist in the negotiation process by exploring potential solutions with the parties, making offers on behalf of the parties, and facilitating amicable and realistic discussions of the parties’ cases.
What are the Key Features of Mediation:
- Neutrality: The mediator is impartial and does not take sides.
- Confidentiality: All discussions, negotiations, admissions, offers, and anything else said during mediation is private and cannot be used as evidence in Court. This encourages frank and honest discussions.
- Control: At all times during the mediation process, the parties have the control over the offers and methods used to reach resolution. You have control over the outcome, which is different to Court setting where the decision is up to a Judge.
Is Mediation Required by the Court?
Whilst engaging in mediation is voluntary, the Court do require parties to attend formal mediation through an official Family Dispute Resolution provider if they wish to make a formal Application to the Court for Property or Parenting. Parties must obtain what is known as a ‘Section 60i Certificate’ from a dispute resolution provider, which is filed with the Court, unless a mediation exception applies in your circumstances.
If the matter does not settle pre-court, then the Court will often make orders for a further mediation be held either with a dispute resolution provider or a Judicial Registrar of the Court for a ‘Conciliation Conference’.
What are the benefits of attending Mediation?
Mediation offers a number of advantages to parties both before Court proceedings and during Court proceedings. These include:
- Ensuring Amicable Outcomes: Mediations are useful where parties are friendly and on good terms as it fosters cooperation, reduces hostility, and encourages genuine discussions. This is particularly useful in disputes involving children. Furthermore, agreements reached through mediation are also more likely to be complied with long term.
- Cost and Time Effective: Resolving a dispute at mediation is much cheaper with respect to legal spend than pursing a matter in Court. As you a likely aware, Litigation gets very expensive and involves several formal court papers to be prepared and various steps in the lead up to the Final Hearing. Mediation can resolve matters on the day, thereby saving you unnecessary costs and time. It is common for most Family Law disputes, whether regarding Parenting and/or Property, to resolve at some stage of the Court process by consent of the parties. By this stage, they have wasted resources and time contesting the matter in Court, only to reach agreement through mediation at the end. Therefore, mediation is strongly encouraged early on.
- Stress and Formality: Mediation is less adversarial, reducing the emotional strain on parties, and typically occurs in a calm and informal setting outside of Court. Therefore, resolving a dispute this way is significantly less stressful than going through complicated and lengthy Court proceedings.
- Flexibility and Creativity of Solutions: Parties are able to craft solutions tailored to their unique needs. The agreement can be specific to your circumstances, and parties are entirely in control of how they reach a final solution rather than being constrained to legal standards, rules of evidence, and precedents.
What if Mediation is Unsuccessful?
If a resolution is not reached during mediation either before or during Court proceedings, there are still a number of advantages of genuinely participating in a dispute resolution session:
- Narrowing Outstanding Issues in Dispute: In many family law cases, there are numerous issues that parties are disputing. Mediations can help the discussion of these issues with a view to resolving them, and any issues unresolved can be left for the Court to determine. For example, in property proceedings, the parties may disagree over the value of certain property, chattels, or other assets or liabilities. Mediations allow parties to engage in ‘without prejudice’ conversations over the value of these items. This can assist the parties to reach an agreed value for these assets, enabling the parties to confirm the value of the ‘property pool’ so that this does not need to be litigated during a potential Final Hearing, saving resources, costs and time.
- Partial Agreements: Parties engaged in mediation are often able to reach partial agreements on Parenting and Property. For example, Parenting matters could be resolved entirely at a mediation leaving the Property extant for the Court to decide.
- Analysing Strengths and Weakness: Mediations are an informal way for parties to test their evidence and determine the strengths and weaknesses of their case. Similarly, parties can assess the evidence and case of the other side and ultimately have a better understanding of the arguments and evidence the other side would present if the matter proceeded to a Final Hearing.
Challenges of Mediation
While mediation has many benefits, it also has challenges and things you will need to consider:
- Power Imbalances: There can be significant power imbalances between parties, especially where one party is unrepresented. In such cases, the mediator is trained to address these issues and mitigate the imbalances.
- Unwilling Participants: Mediation requires parties to willingly commit to negotiations and make genuine attempt to resolve the dispute. Where one party refuses to participate or does not make a genuine attempt to negotiate in good faith, the mediation will likely be ineffective as you cannot have one party making all the concessions whilst the other is unmovable.
CONCLUSION
Mediation in Family Law is a valuable tool to promoting a resolution in Parenting or Property matters and is cost-effective and quicker.
Contact Kennedy Guy
If you are currently facing a parenting or property dispute and are considering entering into negotiations or attending a mediation, we strongly encourage you to contact Kennedy Guy Lawyers for expert advice and tailored assistance. Our Family Law team can provide you with guidance on your legal rights and interests, and ensure you are effectively represented. To arrange a consultation, please contact us if you would like to know more via our ‘Enquire now’ button in the top right-hand corner or via (03) 9311 8511.
