Separation can be one of the most difficult events in people’s lives. It necessarily involves the untangling of a formerly enmeshed life into two separate lives, both as financial partners and often as parents.
If the parties can come to an early resolution, there are very significant financial and emotional benefits for all involved.
If a dispute, however, lingers on, parties can become increasingly entrenched in positions which makes a resolution seem less and less possible.
If parties find themselves in this situation, it is important to get competent and early advice.
Your lawyer will advise you as to whether your circumstances require court intervention, or whether your dispute could be better resolved by way of an alternate dispute resolution method, such as mediation.
For more information about other dispute resolution methods, check out this link, or telephone our office on (08) 9375 3411 to discuss which method may be most appropriate in your circumstances.
What is mediation?
Mediation is a method of dispute resolution that involves the use of specially trained practitioners from diverse backgrounds, including, law, counselling, psychology, social work, and family therapy.
Often in a family law context, when parties have a dispute about their property settlement, a mediator will be a current or formerly practising lawyer, including former Family Court judges and magistrates.
Mediation is a confidential process that is aimed at empowering the parties to discuss legal and non-legal issues that they feel are affecting their ability to come to an agreement, and work together with their former partner to explore potential solutions to their dispute.
Put simply, mediation puts the decision-making power in the hands of the parties, as opposed to the court system, and means that the creative solutions that may not be available to a court can be considered.
Who is involved in mediation?
Mediation can take place with or without the assistance of lawyers acting for the parties.
In either case, the parties convene a mediation with the assistance of a mediator who facilitates the discussion and attempts to guide the parties towards a resolution, however, they do not have the authority to make decisions in place of the parties.
Generally, the mediator will meet with each party separately prior to a mediation, and then the parties and mediator will select a day and meeting place for the mediation.
When does mediation take place?
Mediation can take place at any time.
The circumstances of each case will determine whether a mediation should occur before or during court proceedings.
Do I have to attend mediation in my family law property dispute?
When parties are involved in a dispute in respect of the division of their property, it is not presently a requirement to attend a mediation-style conference, however, unless special circumstances apply, the parties must engage in some form of dispute resolution methodology before commencing court proceedings. It is always advisable to obtain competent legal advice prior to commencing court proceedings, as doing so may reduce the time, money, and emotion spent in attempting to resolve a dispute.
If a matter has commenced in court, and the parties have not attended a mediation outside of court, the parties must attend either a private mediation or a court-facilitated mediation, often called a conciliation conference. A conciliation conference is a compulsory court event and parties will not be able to have their matter decided on a final basis by a court officer without first attempting some form of mediation-style conference.
What are the benefits of mediation as opposed to the other methods of dispute resolution?
As discussed above, mediation facilitates co-operation. It is often surprising to parties and lawyers alike how seemingly intractable disputes resolve just by participating in mediation with skilled practitioners. The process of co-operation through mediation produces the following key benefits:
- Money saved by resolving your dispute without the need for costly, court intervention.
- Time saved by not having to wait in a list of matters in the Family Court which is a heavily burdened mechanism.
- Flexibility of solutions – if decisions are left to the Family Court, the solutions can often result in an outcome with which neither party is happy. If decisions are made by the parties themselves, they can be creative and if not always a “win-win”, they can at least be a solution that the parties can live with.
- The removal of a significant amount of competition from the process. Going to court is necessarily one person versus the other. Mediation is aimed at facilitating an opportunity for the parties to listen to each other about the roadblocks that they each see to a dispute. An additional benefit of this is that the parties can work through non-legal issues that they consider are preventing a resolution which the court is not necessarily empowered or willing to resolve.
Can information discussed at mediation be used in Court proceedings?
Generally, what is said at mediation may not be used in evidence in Court. The exceptions to this rule are whereby parties involved in the mediation have legal obligations to report the suspicion or risk of child abuse to authorities, where there has been an admission or disclosure of child abuse, or where there is violence or a threat of violence.
The confidential nature of mediation is a very important tool in allowing the parties to be more flexible about reaching a resolution without the threat that they may affect their case if the matter does not settle at mediation.
Our family lawyers have significant experience in resolving matters through the mediation process, and, our director and Head of our Family Law Team, Jacqueline Brown, has experience as a nationally accredited mediator. If you have an enquiry about a mediation, please contact our office on (08) 9375 3411.
About the Author: Mitchell holds a Bachelor of Arts degree majoring in Psychology from Macquarie University in Sydney and a Diploma in Law from the Law Extension Committee of the LPAB in NSW.