Mediation is very regularly a necessary step for resolving family law disputes involving both parenting matters and also property. Section 60I of the Family Law Act requires parents to mediate with a ‘Family Dispute Resolution Practitioner’ before a Court will accept the filing of proceedings in almost all cases save those of urgency or where mediation would be clearly in appropriate (for example, in cases of significant family violence).
A common misconception among parties’ is that they will be required to sit down in the same room as their ex partner. Whilst that is an option, it is more common that mediations are conducted in a ‘shuttle’ format, with the mediator themselves carrying the conversation back & forth between the parties who are stationed in two separate rooms.
These mediations are conducted in a ‘solicitor-inclusive’ manner, and throughout the day your solicitor will discuss with you the offers and counter-offers to be made, the options available to you and also the likely costs which might be incurred.
The mediator is an impartial party to a mediation and they will facilitate the ‘conversation’ by communicating offers and positions, piloting the discussion, and filtering out information that (whilst it might make us feel better getting it off our chest) may not be entirely helpful to achieving the primary objective: resolving the matter.
The obvious advantage about proceeding down the path of mediation (particularly with a mediator learned in Family Law) is that you take control over the outcome. It gives you a significant degree of certainty over your future that you just do not have when you rely upon a Court to determine the issues in dispute between yourself and your partner.
That is not to say the Courts do not do a terrific job (which they do), often in very difficult and testing circumstances, however in my experience as a lawyer I can’t recall too many times where I have seen a party leave a Courtroom after a hearing or a trial with total satisfaction about the result. Mediation also saves you time and money given the current delays in the Family Courts (often up to a year for a trial, and then you have to wait longer for the decision!).
I might add that any and all discussions at these mediations are ‘without prejudice’ and cannot be used against you, in the unfortunate (and also less probable) circumstance that you are unable to reach agreement. It allows parties to make concessions or offers that they might not normally otherwise make in usual (prejudiced) discussions.
In the event you can reach agreement (and I can say in my experience, that mediation is very effective in reaching agreement) then your lawyers can draft that agreement into a formal, legally binding agreement.
When preparing for mediation, you should meet with your lawyer a week to two prior to the mediation date to discuss what will happen on the day, your range of possible outcomes and what is likely to happen if agreement cannot be reached (especially Costs). You will find this helpful to you in order to help you make proper, fully informed decisions – after all, this is your life we are talking about.
It would also be a good idea to confirm that you have completed all of your disclosure requirements. In Family Law matters, there is no such thing as ‘trial by ambush’. Think of it like an open handed game of cards, with everyone able to see the hand that the other parties are playing with. You are required by the law to disclose your financial position to the other party (in property matters) or any other relevant information (in parenting matters) and I find it can derail a mediation if there is information unavailable to the parties’ on the day to assist them in making proper decisions.
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