Mediation has been placed at the centre of the Australian family law system. When separated couples cannot agree on how to parent their children or divide their property, they are now required by legislation to mediate before an application to court is made. Quite separately experienced lawyers will encourage their clients to participate in mediation as an effective way of reaching agreement and resolving disputes.
What is mediation?
Mediation has a long history, not just in the legal system, but in the wider community and throughout history. It has become increasingly important in the legal sector as a way of reaching a settlement without going to court. Mediation is simply the process of using an independent third party to assist disputing couples to identify issues in dispute, examine alternative solutions and consider options, with the aim of reaching an agreement that both parties can accept.
The third party mediator is neutral. Their role is not to take sides or impose their decision on the parties. They allow each side to put forward their respective positions and then attempt to reach common ground between the parties to resolve the dispute.
In some cases however, experienced mediators may provide their views on how a court would approach their dispute and the strengths and weaknesses of each parties position if the parties agree. This independent viewpoint can assist the parties to understand the range of outcomes that are likely should a court decide the matter.
Mediation is a voluntary process when parties are not in court. If one party refuses to participate, then mediation cannot occur. If mediation occurs in parenting matter an appropriately qualified mediator is able to issue a s60I certificate to the parties which confirms that they have attempted to carry out the mediation requirement.
What is said by each of the parties at a mediation is normally confidential. It is not allowed to be used in court. There are exceptions to this such as where one party threatens the other.
Mediation does not always involve the parties and their legal representatives. Parenting matters are often attended by only the two parents. If that occurs, it is always recommended that the parties seek legal advice on any agreement they reach before signing it.
When to mediate?
Couples are able to mediate at any point in their dispute. They are able to mediate before or after separating, or while they are in the middle of court proceedings. There is no set rule as to when mediation can occur. If the parties agree, they can mediate at any time in an effort to settle matters.
When is mediation not appropriate?
Mediation is not appropriate to all couples who are in dispute. While legislation has made it compulsory to attend mediation before making an application to court, there are exceptions to this requirement. Mediation is not required where there are urgent circumstances which must be placed before a court for determination. For example, a child may be at high risk of harm, or a party may be about to dispose of a major asset. In such cases applications can be made to court for urgent orders without fulfilling the need to attend a mediation.
Mediation is also not appropriate in circumstances where there is family violence. To force a victim of family violence to attend a mediation with their abuser may only perpetuate that abuse. The power imbalances between individuals in abusive relationships is a significant hurdle to the parties being able to negotiate with each other and freely come to an agreement.
What are the benefits of mediation?
The benefits of mediation are many and significant. Resolving disputes though mediation is much more cost effective than incurring the costs of commencing litigation in court. A simple mediation for a parenting matter, where the parents only attend, may only cost a few hundred dollars. A more complex mediation to settle property matters where the parties, and their lawyers attend, may cost each of them between $5,000 and $10,000 to arrange and attend. In contrast, where parties file with the court, their legal expenses can range from $3,000 to $5,000 to prepare their court documents, and a further $15,000 to $20,000 for each day of a trial. If there are intervening court events, then these costs will rise even more.
Mediation allows for maters to be settled much more quickly than if the parties attended court. Mediations can happen at any time depending on the availability of the mediator and the parties, and usually only take a day to complete. The court system however is overloaded with matters. The delays in dealing with each dispute is quite long. It can take parties up to 6 months to have their first court date after filing, and a further 12 months or longer before there is a trial.
Mediation allows the parties to remain on control of their dispute and make decisions for themselves. Once they are in the court system, this power is handed over to the judge or judicial registrar. Parties should consider whether they want a court official to make important decisions about their children or property, or whether they would prefer to keep that power to themselves.
Mediations are a more positive process than court litigation. Mediations are directed away from blame and criticism because their purpose is to reach common ground, compromise and agreement. The court process however is combative, with each party going to great lengths to tear down the other side. This process can cause lasting damage to any sort of ongoing relationship the parties have, particularly if they have children.
Mediation is less stressful for the parties. They do not have to attend a court and be cross examined. They are able to put their case forward in a much less formal setting, without the stress of being attacked by the other side or their lawyer.
Mediations have a very high success rate. There are not any easily available statistics, however from experience over 90% of mediations settle. One of the biggest factors in encouraging this success rate is that the parties are aware that if agreement is not reached then the only option remaining is court and the delays and costs associated with that process.
If you would like more information on the family law mediation process then please call us on tel:0746328484 and make an appointment today.
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