Family law mediation is the process where a mediator, usually an experienced family lawyer, barrister or former Judge, assists people in dispute to negotiate a mutually satisfactory resolution and avoid Court.
The Federal Circuit and Family Court Rules of Australia Rules which were introduced in 2021 require parties to take genuine steps to resolve their dispute before commencing Court proceedings. This includes participating (or at least inviting the other party to participate, if it is safe to do so) in dispute resolution, such as mediation and making a genuine effort to resolve the dispute.
What is important for you to know is that the mediator does not take sides in the dispute or make a decision about which party is right or wrong. Instead, they work with you and the other party, along with your lawyers, to come to a resolution in relation to the issues in dispute, be that parenting or property issues.
There are different ways in which a family law mediation can be conducted. Typically the parties would attend in person at an agreed venue with a mediator, your lawyers and in some cases, a support person for each of you. However, if you are uncomfortable with the prospect of seeing your former partner face to face, there are other options to facilitate the mediation to ensure the safety of all parties.
The goal of family law mediation
Mediation is an opportunity for you to get together with the other party on one day to try and resolve your matter out of Court with the assistance of a mediator. The goal of mediation is to bridge the gap between your respective positions and ultimately reach an agreement that you both can live with.
How to get the most out of the family law mediation process
When we first begin supporting our clients, we assess your circumstances to determine the best options to resolve the dispute you are faced with. As part of this process, we will provide you with advice about your likely outcome if your dispute was being determined by a Judge.
For mediations relating to property settlement disputes, as part of our advice, we usually provide clients with a likely range of what they would be entitled to. That is expressed in a percentage range for example, between 45% and 55%.
For mediations relating to parenting arrangements for children, there are a number of factors that the Court considers in determining the best interests of the children. We can provide you with insight into what would be considered suitable once we have specific information in relation to the ages and unique needs of your children and family, amongst other considerations.
Related: Parenting arrangements and the law
Prepared to take the Court route?
If you cannot settle your matter at mediation, it may be months or even years before your matter is resolved or determined on a final basis by the Court. If you are of the mindset that if you don’t get exactly what you want at mediation you are prepared to go to Court, it is important that you have regard to the implications of going down such a path.
Not only should you consider the legal fees that you and your former partner will both incur over the coming months and potentially years if your matter does not resolve, but it is important to understand that when your matter has to be decided by a Judge, you lose control of the outcome and you are leaving the responsibility of making significant decisions about you and your family in the hands of a Judge who has never met you and does not know your children.
It is also important to consider the emotional burden that proceeding to Court will have on you and your family and your ability to move on with your life.
There is a significant amount of work that goes into preparing a matter for Court and participation in proceedings, this can be very stressful and exhausting, particularly when you are juggling this alongside your work commitments and raising children.
Delaying resolution of your family law matter can also adversely affect your co-parenting relationship because of the conflict and stress you are both facing with each other.
The flow on effect is then how this impacts your children because, regardless of your best intentions, they are exposed to their parent’s stressors. They also observe tension between their parents, for example at changeovers or in conversations or comments that they overhear about the other parent. This can have various negative impacts on children including their relationships with each parent and other members of their family. Children are at risk of being caught in the middle of the parental dispute and feeling conflicted and torn between their loyalty to each parent. It is also the example that children see of what a relationship looks like and will impact their own relationships in the future.
When parents have the ongoing stress and pressure of their unresolved family law issues, this also negatively affects the children because the parents have a lot more on their plate and so it impacts the parent’s ability to be present for their children.
That being said, it is important to acknowledge that some matters won’t be able to settle at mediation if the other party is a particularly difficult personality and is unable to compromise. Parties are more likely to be able to resolve their matter at mediation if both parents come prepared to compromise and negotiate in order to reach an agreement.
Considerations in the lead up to mediation
Being well prepared and providing all required disclosure documents and information ahead of time helps your lawyer to best prepare your matter for mediation. To get the very best out of your lawyer and the mediation process, you will need to have given your lawyer timely instructions in the lead up to the mediation. This ensures that we have adequate time to prepare and if we require additional information or need you to make enquiries with third parties (for example, with your tax accountant to understand the tax implications of any proposed settlement), you are not having to source information at the last minute. Helping your family lawyer in this way and being well prepared gives you the best chance of resolving your matter at mediation.
Often family law issues are driven by emotion, this is human nature. You are likely to be more successful in resolving your dispute if you take the time to think about how the other parent will be feeling and how they will react to different issues. We encourage clients to be conscious of not doing things that will trigger unhelpful emotional reactions. For example, proposing to bring your new partner as your support person at the mediation if the other party is having a difficult time coping with the separation.
It is important to go into a mediation with an attitude that you will have to make concessions and be prepared to move from your initial position in order to bridge the gap between your respective proposals.
Rarely will either party walk away entirely happy from a mediation.
It is important to remember that the aim of this process is to resolve the issues in dispute. Coming to an agreement requires both parties to compromise.
Any offers for settlement should be considered in the context of weighing up what you are arguing about and the further legal costs that you and your former partner will both incur if an agreement cannot be reached and you have to continue down a path of negotiation and/or commencing Court proceedings.
It is often not until clients have gone down the path of Court proceedings and having to prepare and participate in a trial that they appreciate how much time, work, cost and emotion goes into proceeding down this path. It is difficult to appreciate this when you are in the heat of the moment of a mediation and the other party is being difficult but it is important that you step back and consider the big picture. Proceeding down the Court route is not a decision that you should make lightly.
For this reason, we encourage clients to give careful consideration to the advice that they are given from their lawyer. If you get an offer that is within your range of entitlement that your family lawyer advises, then you should really consider accepting that offer even if it is not exactly what you wanted after taking into account the likely costs and litigation risk involved in proceeding further.
It is important to go into your mediation being open to moving from your position. Focus on the bigger picture and avoid getting caught up on the smaller issues.
Rarely will people walk away from a mediation feeling like they have won. The closest thing to a win is to achieve an outcome you can live with, to resolve the outstanding issues so you have certainty and move forward with your life.
Related Articles: What happens in a mediation?
Phillips Family Law is an award-winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision-making process, we can make you aware of your options. To discuss your situation confidentially, phone (07) 3007 9898 or secure a time by filling in our confidential form here.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.