Mediation and Your Family Law Dispute – Agreements that Suit Your Needs
WHAT IS MEDIATION?
Mediation is an alternative way to determine a family law dispute outside of the courts. The Mediator Standards Board defines mediation as: “a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes.”
It is a process of problem-solving that is guided by an impartial third party called a mediator.
WHAT DOES A MEDIATOR DO?
In family law, the role of the mediator is to facilitate the process of dispute and conflict resolution while the content of the discussions rests with the parties. The mediator can assist the parties to clarify the most pertinent issues and consider ways to resolve these issues. A mediator will not, and cannot, give advice about your dispute or determine the dispute for you.
HOW IS MEDIATION DIFFERENT FROM COUNSELLING, CONCILIATION OR ARBITRATION
In mediation, the participants of mediation can control the outcome of the dispute by agreement. While counselling attempts to understand the relationship, mediation is about the resolution of conflict. Unlike mediation, a conciliator has the power to give advice about the likely outcome of the dispute and an arbitrator has the power to resolve the dispute.
DO I NEED TO GO?
Mediation is compulsory for those seeking parenting orders, in which case you will require what is called a Section 60I Certificate. There are, however, some circumstances where the Court may grant an exemption from being required to obtain this certificate.
Although mediation is not compulsory for a court order relating to property, it can be preferable.
WHAT ARE THE BENEFITS OF MEDIATION?
- Parties can maintain control over the negotiations
- The opportunity to develop stronger communication skills that can improve future parenting
- The chance to establish a parenting plan that is tailored to your individual needs
- A timely resolution given court orders may take years to finalise
- Saving legal fees and court fees related to having your case heard in court
- The chance to learn ways to negotiate future conflict that may arise
DO YOU NEED A SOLICITOR TO REPRESENT YOU AT MEDIATION?
However, having a solicitor guide you through mediation can be beneficial for a number of reasons.
Solicitors can:
- Assess and advise clients about the advantages and disadvantages of offers made at the mediation;
- Advise clients about the worst possible outcomes, best possible outcomes and the most likely outcome;
- Suggest solutions that neither party or the mediator have considered;
- Ensure that any parenting plan or terms of settlement are drafted in a way that protects your interests and reduces the chance of future disputes;
- Advise in relation to, and prepare, documentation that is required for the purpose of applying for consent orders that are agreed to mediation.
WHAT HAPPENS AFTER MEDIATION?
If there is an agreement, the parties may apply to the Court for this to be made as an Order. If there is no agreement, the mediation may assist the parties to determine the relevant issues for determination by the Court, or help to identify further lines of enquiry that need to be attended to. The matter may also resolve after the mediation, for example if offers of settlement are subsequently made.
The family law team at Matthews Folbigg Lawyers are ready to assist parties in preparing for and providing representation at mediation. Matthews Folbigg Lawyers also provide mediation services with an Accredited Mediator.
For advice about family mediation contact us on 1800 300 170 or email us at familylaw@matthewsfolbigg.com.au
Disclaimer
Family law situations can be complex and sometimes they can involve serious issues. Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.
