After separation, one of the most common questions clients ask is whether they need to go to Court to finalise separation. Understandably, costly, and sometimes lengthy court proceedings on top of the stress and emotional process of a separation is something they would prefer not to go through. Mediation and Family Dispute Resolution (FDR) offers separating couples an alternative way to resolve any disputes or conflict, and the opportunity to reach an agreement without the involvement of the Court.
How Mediation Works in Family Law
A separating couple cab engage in mediation and FDR, and work with an independent and accredited mediator /FDR practitioner to discuss their issues or points of conflict and reach an agreement themselves.
For couples who don’t have children, mediation offers a chance to resolve disagreements over the division of their property and assets and allows each party the chance to voice their opinion and contribute to the decision the division of their assets.
For couples with children, mediation also works particularly well and can be beneficial when trying to reach an agreement on issues such as where the children will live and how much time they will spend with each parent. It can also be used to reach an agreement on decisions surrounding their child/children’s day-to-day life, such as schooling, medical care, holidays with each parent, religious up-bringing etc.
The Family Courts have made Mediation and FDR compulsory for all separating couples who have children to engage in prior to commencing any Court proceedings. This is because in most cases, mediation can be used to facilitate an agreement quickly and effectively, without the emotional impact of Court proceedings on a family. Before parties commence proceedings, they must prove that they have attempted to resolve their issues through FDR before they are able to refer their matter to the Court for hearing. However, there are certain exemptions to this requirement.
The Process of Mediation
When a mediation is agreed upon and a date is booked in a family law matter, an individual Family Mediator will meet with both parties and their lawyers in the same room (unless there are safety concerns). The mediator facilitates the discussions and negotiation between the parties and their lawyers. Each party gets a chance to talk about what the issues are and what they hope to achieve from the mediation.
During the mediation session, each party will also have the chance to leave the session and consider options or discuss any issues or suggestions raised on the day in private with their lawyer, or with the mediator.
When an agreement is reached, the mediator can also help to determine how best to document the agreement and what further actions will be required of each party, including whether the documentation should be lodged with the Court.
4 Benefits of Mediation
- One of the main benefits of resolving a Family Law matter through mediation is the parties retain control of the decision-making process and can be involved in the discussion. Rather than taking the matter to Court and having a decision imposed on them by a third party, settling mediation enables the parties to negotiate an agreement that suits them both.
- Negotiating through mediation can significantly reduce conflict as the Court process can increase parties’ reactions to separation. This is a significant advantage to reduce Court imposed conflict particularly when children are involved.
- Mediation is also a private process – as opposed to an open Court room – and allows parties to resolve their issues and negotiate property settlements confidentially. This is particularly relevant if there are family businesses or significant asset pools at stake for instance. The details of any mediation remain confidential and are not disclosed, subject to certain exceptional circumstances, even if the matter ends up in Court in the future.
- Mediation can also be a quicker and cost saving process to settle issues between separating couples. The Court process can be long and protracted which is an expensive exercise.
If you are in the process of separating and would like to discuss whether mediation would be appropriate in your case, contact our experienced family law solicitors at Meredith Lawyers for advice on ph: 1300 537 306