Mediation is a type of dispute resolution which aims to resolve disputes between parties outside of the Court system. A neutral third party (the mediator) assists parties by facilitating discussions to try and reach a negotiated agreement that settles the dispute. It may be that an agreement is only reached on some of the issues, which means that the issues in dispute are narrowed.
Mediation can be used to resolve disputes at any time, and it does not necessarily have to be straight after separation. There are however time limitation periods for property settlement matters and it is important that you obtain legal advice about these after separation.
The benefits of mediation include:
- The opportunity to work out your own solutions;
- To save a huge amount of time and money;
- To work towards resolving issues in a respectful and less litigious manner; and
- To allow you to hopefully move on with your life.
It is now a requirement to attempting to resolve property settlement matters by negotiation or mediation prior to filing proceedings in the Federal Circuit and Family Court of Australia (‘FCFOA’). Exceptions to this requirement include:
- If there are allegations of family violence, or a risk of family violence;
- For applications that are urgent;
- if the applicant would be unduly prejudiced if required to comply with pre-action procedures;
- if a previous family law application has been filed by one of the parties in the last 12 months;
- if the proceeding is an application for divorce only;
- if the proceeding is a child support application or appeal, or
- if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.
Mediation Process
The mediation process is usually initiated by one or both of the parties. If it is initiated by one party, the mediator will contact the other party and explain to them that they have been approached by Party A to organise a mediation between the parties. If Party B agrees to mediation, the mediator will organise a separate intake with both of the parties (and their solicitors if they are represented). The purpose of the intake is the identify what issues are in dispute and explain the mediation process to the parties. A mediation intake will usually take place on the telephone.
A mediation can be held with all of the parties in one room (joint mediation) or the parties in separate rooms (often called a shuttle mediation). There are many circumstances where mediation in the same room is not appropriate, such as where there are domestic violence issues. Mediations are also now able to be conducted over the phone or via virtual means such as by Teams or Skype.
During the course of a mediation session, parties will have the opportunity to speak privately with their solicitor if they are represented and reflect upon proposals, they wish to put forward to try and resolve the matter.
Throughout the mediation the mediator will ordinarily ask the parties to consider options for settlement. The mediator may ask one party to make an offer to the other. Offers continue to be exchanged between the parties until an agreement is reached. If it is a shuttle mediation, the mediator will take the offers back and forward between the parties.
Mediation is not only used prior to court proceedings being commenced and the family courts will now order parties to attend mediation in many of the matters which come before the Court, often prior to the court making any decisions for the parties.
What to do to prepare for mediation
If you intend to attend Mediation without legal representation it is strongly recommended that you have obtained legal advice from a family lawyer beforehand so that you can make appropriate offers that are within the range of outcomes that a Court might make if considering your matter.
In financial/property matters, parties will need to prepare spreadsheet with a list of all assets (including superannuation) and liabilities. It may also be helpful to prepare an outline of your case for mediation. This includes outlining what you are asking for and why you believe you should get it. Our experienced family lawyers Bayside can assist you to compile an asset list, advise you of all of the relevant adjustment factors and guide you towards an appropriate outcome.
We strongly suggest that you make an appointment with one of our experienced family lawyers Bayside at least a month before a property mediation so that you have time to prepare properly and gather any outstanding information and documents prior to the mediation taking place.
Where do I go for mediation?
There are a range of experienced Family Dispute Resolution Practitioners, and you can search the Family Dispute Resolution Register on the Attorney General’s Department. Alternatively, you could engage a free or low-cost mediation service, although you will generally experience a longer wait time if you do not engage a mediator privately.
What happens if an agreement is reached?
If an agreement is reached, parties have the option to formalise their agreement by either a parenting plan or consent order. It is recommended that any party heading to mediation obtains legal advice prior to mediation from an experienced family lawyer about the options to formalise agreements.
If you are wanting to file an Application for Consent Orders it is recommended that you obtain legal advice from a family law solicitor.
Need some help?
McCormick Family Law are experienced and expert in family law property matters and our solicitors can represent clients at mediation.