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If you are considering mediation, are due to go to mediation or are just interested to learn about it, you may wonder:
- How does family law mediation work?
- Why is mediation better than Court?
- Is mediation the right dispute resolution option for my circumstances?
Or, if you have a mediation ahead of you, you will probably want to get your head around:
- What to expect at a mediation (for custody/parenting arrangements or finances and property); and
- How to prepare for family law mediation and how to get the most out of it.
And, if you are unsure if mediation is the right way for you and your ex to move forward, this page will provide you with the insights you need.
Let’s start with…
What Is Mediation In Family Law?
In short, mediation is a process to help people get to an agreement about the issues that are in dispute about their children or finances and property. A Mediator is an independent person whose role is to impartially facilitate you and your ex reaching an agreement.
The issues are often broadly categorised as:
- Parenting matters
- Property matters
Parenting Mediation
Parenting matters include getting to an agreement about the care arrangements for any children you have between you, with the goal being to create a Parenting Agreement that works for you and most importantly, for your children. This may be a Parenting Plan, which is an informal and unenforceable agreement, or Parenting Orders which are lodged with the Court and are legally binding. Parenting Orders are often referred to as Consent Orders.
While mediation is now a required step before a dispute can proceed to Court in Australia, there are some circumstances where it might not be appropriate, or possible.
Property Mediation
Property matters include getting to an agreement about all of the financial separation aspects. This may include reaching an agreement about child support.
While there are a number of benefits in going through the mediation process, perhaps the most significant is that it helps minimise the need to go to Court.
Why Is Mediation Better Than Court?
While some people are of the mindset that they’re better off going to Court, it is important for them to understand that due to the high volume of cases that go through the Court system, it can sometimes take two or more years for a matter to be heard by a Judge. That’s an awfully long time for a decision to be made and often, people’s lives are effectively put on hold in many ways.
If you and your former partner or spouse are at a deadlock in your negotiations, and one or both of you believe that going to Court will provide the best outcome, consider this…
When you take your dispute to Court, you effectively hand over all decision-making power you currently have to a Judge. And when they finally give judgment in your matter, it is final. So, if you are unhappy with the outcome, you don’t have the option of going back to the negotiating table.
Then there are the costs associated with going to Court including seeking legal representation, rather than only legal advice. When you hear about protracted disputes in the family law Court, while it is typically a distressing process for most people, the financial burden adds an extra layer that could have possibly been avoided if you went to mediation.
So is mediation better than Court? In the majority of cases, yes. But in others, no. In some circumstances, the mediation process will not be appropriate. Your Mediator or your family lawyer will advise you about whether going to Court will be the best course of action in your circumstances.
Does Family Law Mediation Work?
Since the introduction of mediation and other dispute resolution methods, family law matters that end up going before a Judge, are hovering as low as only 3%.
Importantly though, what that low percentage doesn’t consider is those people who get to an agreement in the days leading up to the Court Hearing, and often, the morning of.
While they aren’t adding to the percentage of matters that end up in Court, they have usually incurred significant additional expenses and prolonged stress, than if they’d come to an agreement a year or two earlier.
So, does family law mediation work? That’s a question for you to unpack with a family lawyer. They’ll ask you about your former partner or spouse to better understand communications styles, look at the issues in dispute, and determine whether mediation is appropriate in your unique circumstances. Like most things in life, whether family law mediation works depends on how it goes on the day.
What helps though is for you both to have an understanding of the different outcomes that might be available and the impact of these alternatives. While you will be aiming to make the ‘right’ or ‘best’ decisions, only a lawyer can give you advice about the ‘bigger picture’ and legal knowledge for you to truly make the best decisions for you and/or your children.
And, while not compulsory, it can be very helpful to have a lawyer-assisted mediation. That is, have your family lawyer on hand to support you. Many times a mediation is mentally and emotionally exhausting (often from anticipation leading up to the mediation and the mediation day itself). Having someone on hand who has a deep understanding of family law to provide advice, can only be beneficial.
How To Prepare For Family Law Mediation
Most Mediators will have what’s called an ‘intake session’ with both you and your ex, separately, in the lead up to your mediation. They want to get a clear understanding of what each of you identify as the issues in dispute. They will determine, based on your circumstances, whether a mediation will be appropriate or not. They will also explain how they will run your mediation so you know what to expect. This is often where you can ask any additional questions you have.
Importantly, the agenda for a mediation is set on the day, at the start of the session. This is because some issues may have been resolved between setting the mediation date and the actual day. The Mediator will ask for you to share the key issues you want resolved at this point and again at the mediation.
What To Expect At A Mediation For Custody & Property
You may require a mediation to get to an agreement on parenting arrangements only, or property settlement matters only, or both.
Depending on the nature of the matters in dispute, mediation may be set for either half day or full day. If you need to discuss both parenting and property, generally mediation will go for the full day. And although you might only need to resolve property, depending on the complexity of your matter and the number of issues to discuss, a full day of mediation might also be required to ensure you have enough time to cover everything.
Sometimes the Mediator may set two half days, one for parenting and another for property or get it all done in one day. If there are numerous items in dispute a second day or half day may be required.
As mentioned above, the agenda is set on the day, at the start of the mediation. This is because some issues may have been resolved between setting the mediation date and the actual day. The Mediator will ask you again to identify the key issues you wish to be resolved so they are the most up to date and relevant issues in dispute.
During the mediation, after you and your former partner identify all of the things you want to discuss, the Mediator will work through each of these issues one at a time, and allow you both the opportunity to air your concerns.
Importantly, the Mediator cannot give you legal advice.
The Mediation Day
Typically a mediation follows a process like this:
- The mediator provides their opening statement to recap the process and objective of mediation (what to expect from the mediation);
- Both you and your ex provide your opening statement (a concise summary of the main issues you want to discuss);
- Agenda is then set (the list of issues are written down in order of priority);
- Agenda items are unpacked one issue at a time (concerns and views but no offers);
- If a lawyer is involved, then we privately discuss options, consequences of and offers to present (this is the point where we can take over to negotiate on your behalf, if required) based on your wishes and what you are prepared to offer and/or accept;
- Repeat Steps 4 and 5 for each issue on the Agenda;
- Offers are made and negotiations occur (until you hopefully reach an agreement).
What Happens At The Conclusion of The Mediation?
At the end of the mediation, if not all of the issues on the Agenda are resolved, another half day of mediation may be organised to deal with those outstanding issues, unless someone says at that point they no longer wish to negotiate. This is recorded to ensure that you don’t find yourself having to go back again months or years down the track.
If an agreement is reached, then that is when they need to be written up. A Mediator can’t draw those up for you with the specifics, so this is another reason why having a lawyer on hand is beneficial. The last thing you need is for your ex to be presenting that agreement differently to what you know it to be.
Next, both you and your ex sign that agreement. Depending on your circumstances, you may make an Application to the Court for Consent Orders, sign a Parenting Plan or enter into a Binding Financial Agreement. Consent Orders is what makes the agreement final and binding. That is, the agreement is enforceable. This is essential to ensure that the other person has to commit and follow through with the terms of the agreement you’ve reached together. However, sometimes Consent Orders may not be the best option for your unique circumstances and that’s why you should obtain legal advice about this.
After such a significant day, it is easy for people to get confused so having a lawyer on hand can help reduce the heavy mental load both during the mediation, and afterward when writing up the agreement to present to your ex.
How To Get The Most Out of Your Mediation
Now, to be clear, when we say ‘get the most out of your mediation’, we aren’t talking about the most in terms of most time with children or most out of the property split.
What we mean is to put you in the position of being:
- Fully informed about the process
- Aware of what the law says in relation to your intended decision
- How the law may alter your decision making / negotiation approach
- Aware of what (if any) risks exist specific to your circumstances
- Be prepared with those main issues in dispute by listing them in order of importance
- Be aware of your emotions. It can feel like you’re being cut off by the Mediator but they are there to focus on addressing the issues in dispute so that you can reach an agreement
- Walk away from your mediation less likely to experience unknown or poor consequences as a result of any agreement reached at meditation
AND most importantly, that you don’t have to go through it again later on.
When you get to an agreement, you want that to be final, so you can then move on to the next phase of your life. The ability to draw a genuine line in the sand is vital.
What we sometimes see go wrong, which only becomes apparent after the mediation is over, is that not all of the major issues in dispute are covered in each person’s opening statement. Not setting out all of the things you want to discuss, often means you will need to engage in further negotiations. That’s why it is so important to write a list of topics that you want to discuss at mediation.
Another common issue is when the agreement that is reached during the mediation falls over afterward. That is, someone doesn’t sign the agreement because, upon reflection, or after receiving legal advice, they shouldn’t have agreed to ‘x’ or ‘y’. This is why having a family lawyer on hand in a mediation helps you each feel confident about your decision making, because you’ve had the benefit of legal advice in the moment.
You cannot replace the benefit of early advice from a family lawyer. Even if you only have one appointment with a family lawyer, you will be far better off than if you do not. While the Mediator themselves will make you aware of the law in the mediation, they cannot give you legal advice so that you can make informed decisions.
Even better are the benefits of having a lawyer assisted mediation. Some of the advantages of having a lawyer there with you on the day of your mediation, include:
- Receiving advice as you go
- Our lawyers observe our clients and ask for breaks in the mediation to debrief, check in etc (especially helpful if you are feeling overwhelmed)
- If you are unable to speak for yourself at some point, you can elect for your lawyer to speak on your behalf
- A Mediator may have a meeting with your lawyer and your ex’s lawyer to discuss the likelihood of your matter ending up in Court (which can be helpful to get the other side to understand the costs, delay and stress of that avenue, and can go a long way in encouraging more reasonable negotiations).
At this point, it’s worth mentioning that a lawyer assisted mediation does not mean that the lawyer has to be your mouthpiece throughout. That is, unless you require it (for safety reasons, for example) or if you ask them to speak on your behalf at certain points in the mediation. It is at the point of making offers that we often step in to do this part on your behalf which can help settle issues in a timely manner. Importantly, you should know that with your lawyer you are always the decision maker. How you are going and how the mediation is progressing will influence how much you may want us to speak on your behalf.
So, we trust you have the answers to the questions ‘How does mediation work in family law?’ and ‘Why is Mediation better than Court?’ We hope that we have given you a clearer understanding of what you can expect from a mediation and what can make the difference to help you move out of this stage, and on to the next chapter of your life.
Related: Can’t Get To An Agreement With Your Ex? Family Law Dispute Resolution Options
For more information about care arrangement options for children, read this page
For more information about property settlements, read this page.
If you want advice about your circumstances, reach out to our experienced family law team.
We help people across Greater Sydney get through these often difficult times. In addition to phone and online consultations, we also have office locations in Penrith and Blacktown. Reach out to our team on 02 47 222 050.
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.