There are a lot of difficult issues to sort through when a relationship breaks down and a couple separates. Living arrangements, who the children live and spend time with, property settlements, maintenance and much more need to be decided.
Doing these things is made tougher because the split has no doubt made the situation highly emotive. This can make working through these issues with your former partner to find solutions to pressing problems seem almost impossible.
This is where mediation comes in. In the past couple of decades resolving disputes through mediation has become an increasingly popular method, particularly when it comes to family disputes.
Compulsory Family Dispute Resolution in Parenting Matters
In fact, the Australian family legal system now requires former partners to attend mediation, known as Family Dispute Resolution (FDR), before they are able to file Court proceedings parenting related matters. The only exceptions to this requirement are when there is family violence or certain other extenuating circumstance around the dispute.
FDR is not compulsory for family law financial related disputes.
However, private mediation can be an extremely useful vehicle for resolving such disputes and should not be overlooked.
In fact, separating couples in a financial dispute involving financial dispute are compelled by the court to follow pre-action procedures so as to narrow the issues that require a court decision. The courts and parliament consider this control costs and if possible, resolve disputes quickly, ideally without the need to apply to a court.
The Family Law Rules require prospective parties to genuinely try to resolve their dispute before starting a case. Except for those situations where applications are exempt’, all prospective parties must:
- Participate in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration.
- If dispute resolution is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement.
- Comply, as far as practicable, with the duty of disclosure
Anyone who does not comply (unless exempt) risks consequences, including costs penalties.
The Court may accept that it is not possible or appropriate for the pre-action procedures to be followed in cases:
- involving urgency
- involving allegations of family violence
- involving allegations of fraud
- where there is a genuinely intractable dispute (for example, where one person refuses to negotiate)
- where a person would be unduly prejudiced or adversely affected if another person became aware of the intention to start a case (for example, where there is a genuine concern that the other person would attempt to defeat the claim if they had this prior knowledge)
- where a time limitation is close to expiring
- where there has been a previous application about the same issue or subject in the last 12 months, and
- where there is a genuine dispute about either the existence of a de facto relationship, or whether a party’s choice to agree to the jurisdiction of the Family Law Act 1975 in relation to the property or maintenance of a party to a de facto relationship should be set aside.
Our experienced Sydney family lawyers are able to recommend suitable private mediators to help resolve the financial related dispute and or even a parenting dispute.
How does mediation in family disputes work?
Mediation involves an experienced, properly qualified mediator who is impartial and neutral working with you and your former partner so that you can each explain your interests and priorities for future family arrangements, with the aim of reaching agreement on them without going to Court.
The mediator is there to conduct the process so both of you can come up with options, find areas of agreement and explore solutions. They are not there to decide who is right or wrong, or make decisions on your behalf, but to help you and your former partner come to your own answers on the important questions before you.
Mediation can take different forms but in the most common set up, the mediator – who is generally chosen by both parties – will bring you both together, make an opening statement, and then invite each of you in turn to set out what you want to achieve from the process. Separate ‘breakout rooms’ allow the mediator to then conduct private meetings with each party, if required, and use a ‘shuttle’ process to communicate questions, responses and offers between both of you. The point of this method is that it gives you personal time and space to think carefully about what you need, what you can compromise on, and also to speak confidentially with your family lawyer or another support person.
The parties will likely come back together in the meeting room if a solution has been agreed, which is then documented, although this can also be done without coming face-to-face again with your former partner.
Other issues regarding mediation
There is no rule about how many mediation sessions you can hold with your former partner to achieve dispute resolution. If you wish to resolve all issues in one session, such as property division, child-raising and financial support, you can expect a pretty big day. It might be advisable to split these issues up into separate sessions on different days, but this will depend on lots of things such as the urgency of your situation, the cooperation of your former partner, and the costs involved.
Sometimes one or both parents will want the wishes of their children heard within the mediation process. This is possible but requires more pre-mediation preparation (and cost), including your children attending an appointment with a counsellor or child psychologist who can help them express their wishes so that they can be included in the mediation process.
It should also be pointed out that in situations where domestic violence or abuse is involved in the separation, mediation may not be a suitable option for discussing family issues.
Finally, you should be aware that family law courts wish to see that parents have made a “genuine effort” through the FDR process to resolve their parenting matters. That means you need to enter a mediation prepared to negotiate “in good faith” and with a genuine commitment to finding mutually agreed solutions.
The benefits of mediation
Mediation is often preferred to conducting family matters through the courts because it can be quicker, cheaper, and preserve the relationship between you and your former partner, despite your history and differences.
Mediation is often described as a “win-win” process, compared with the “win-loss” result that often comes from Court proceedings. This does not mean to suggest you get everything you want from the mediation process, but it means that you get the chance to have your interests and wishes fully expressed, heard, tested and hopefully included (fully or partially) in any agreement, as are those of your former partner.
How can a family lawyer help?
While many separated couples find mediation a welcome alternative to going to Court, it may not be right for everyone. Discussing the mediation process with a legal professional experienced in family law can help you clarify in your mind whether mediation will work for you. They can also suggest other dispute resolution options.
If you proceed with mediation, your lawyer can help you prepare for the meeting with your former partner and also be there on the day to guide and advise you in negotiating to achieve your desired outcome.
At Ivy Law Group we are committed to sharing useful information regularly. We understand for some people the importance of getting some context around your legal issue before engaging legal help!
Family Law Articles
Marital separation (including divorce) and de facto separation is an unfortunate reality of the world that we live in. While some manage to navigate the emotional minefield with minimal anguish, most end up embroiled in bitter legal proceedings. While financial concerns are often of great importance when separating, far more important are matters of the heart: children. When making arrangements for children in a divorce, the Court will place the greatest amount of importance on the “best interests” of the child. But do those best interests include the child’s own wishes?