Mediation In Family Law Matters – Advice And Guidance

Mediation in family law matters is mandatory and will occur where applications are made to the Federal Circuit and Family Court of Australia (the Court) for both parenting and property matters. Mediation may also occur privately when the parties concerned agree to attempt to resolve their differences concerning parenting and property matters prior to any litigation in the Court.

What is Mediation? 

‍

Mediation is an alternative to a judge imposing a decision on the parties in family law matters. There are numerous definitions of mediation, however, for the purposes of this discussion it can be defined as a structured process in which a mediator, as an independent person, assists the parties to identify their differences and facilitates the process of identifying potential options for the resolution of the dispute, whether it be parenting and/or property matters. 

‍

The appointment of an independent mediator is determined by each party and their respective legal representatives. The most common form of selecting a mediator is that each party will submit the names of three potential mediators and agree upon a particular individual. 

‍

The most common appointee as a mediator is a Barrister who has undertaken training with a recognised training provider and gained national accreditation as a mediator. It is possible that a person with accreditation as a mediator other than a Barrister may be chosen by the parties, but it is not often that such a selection is made.

‍

Resolving Disputes in Family Law – The Rules of the Court 

‍

Mediation may occur at a number of steps in the family law process, whether it is parenting or property that is the subject of the dispute between the parties. The Rules of the Court provide that ‘each prospective party to a proceeding in the Federal Circuit and Family Court of Australia must make a genuine effort to resolve the dispute before filing an application.

‍

The Rules are very clear that the parties to a dispute in the Court must take action to attempt to resolve their differences before making any application to the Court. The Rules, however, do not specify mediation as the process by which disputes may be resolves, as can be seen by the following: ‘At all stages during the pre-action procedures, and if a proceeding is started, during the conduct of the proceedings, the parties must have regard to the following: (d) the best way of exploring options for settlement, identifying the issues as soon as possible, and seeking resolution of them.

‍

Whilst mediation is not specifically identified as the dispute resolution process, it is the process that is most commonly used in family law matters.

Family Dispute Resolution Practitioners (FDRPs)

Federal Dispute Resolution Practitioners (FDRPs) are accredited mediators with a distinct role in assisting parties to resolve disputes and develop parenting plans by fostering open communication between the parties. The focus of the FDRP is based on prioritising the best interests of the children.

‍

Parties seeking to utilise the Court to resolve parenting matters cannot make an application to the Court unless they have sought the advice and support of FDRPs. Where the FDRPs cannot resolve the dispute a certificate will be issued, known as a s.60I Certificate, and it is that certificate that will enable the parties to proceed to the Court.

‍

Federal Circuit Court and family Court of Australia (Family Law) Rules 2021 Schedule 1. Part 1 – Financial proceedings. 1. General.

Ibid. clause (5).

When Does Mediation Occur in a Family Law Matter?

‍

Apart from the role of the FDRPs, mediation may occur at any number of points in a family law process, whether it is a parenting or property matter. The following schematic provides some indication of where mediation may occur:

It can be seen from this schematic that the initial phases of a family law matter may include mediation at a number of steps. As indicated in the Court Rules, there is an obligation on the parties to attempt to resolve their dispute(s) and consequently avoid litigation. In addition to the schematic above, there are additional steps in the legal process whereby the parties are obligated to participate in dispute resolution.

Bentley’s Barristers & Solicitors are here to help. If you need a divorce lawyer in Geelong, Malvern, Doncaster or Ballarat, we encourage you to get in touch as soon as possible.

How Does Mediation Work?

The process of mediation is essentially in the hands of the mediator. The most common approaches to the process of mediation are as follows:

• The mediator may meet with both parties and their respective lawyers in the same room. This will enable the mediator to clarify the key issues that are the root cause of the dispute and determine if there are any points of agreement. The question of whether or not the mediator meets with both parties is often determined by the nature of the relationship between the parties and the issues in contention.

          For instance, if there is serious disagreement concerning parenting matters which have been the basis of previous acrimonious behaviour between the parties, the mediator will not bring the parties together.

• The mediator may decide to meet the parties separately to clarify the key issues in dispute and determine whether there are any points of agreement between the parties. In this arrangement the mediator will move from room to room exchanging respective positions and attitudes–this process is referred to as shuttle mediation.

• Alternatively, the mediator may choose to combine both collective and separate discussions in the search for ways in which to assist the parties in finding a resolution to the matters in dispute.

Preparing for Mediation

In any family law matter, whether it be a parenting dispute or property dispute, it is inevitable that there will be at least one mediation session in the formal court process. If there is a parenting dispute, there will be a mandatory mediation session with an FDRP, and there may be a private mediation prior to any court-based process. Given the inevitability of mediation, it is crucial that the parties are aware of the process and are prepared to participate with an open mind.

‍

In its simplest form, mediation is concerned with finding a resolution to the relevant dispute. In that regard, the parties must be prepared to look with an open mind at any options that arise. Compromise is an essential ingredient in any mediation process.

‍

In addition to approaching mediation with an open mind, parties should ensure that they discuss any concerns that they have with their lawyer and make sure the lawyer is fully aware of any particular matter that the party wishes to reinforce or is concerned about.

Depending on the matter or matters that are the subject of the mediation process, the parties' lawyer will have access to all relevant documentation, including a parenting plan if relevant, child support documentation if relevant, and all other associated material that may arise in the mediation process.

It will assist the lawyer if the parties are able to prepare ‘personal notes’ which set out matters that the parties consider to be important such as key points that are considered to be important, the goals that the parties wish to achieve and any other matters that might get lost should emotions run high in the mediation process. These ‘personal notes’ may not ever be used, but on the other hand, they may be crucial in assisting a party that needs to be reminded of essential matters.

An experienced lawyer can help you make sure you have all the documents you need. Contact us if you need a divorce lawyer in Brunswick, Bendigo, or Preston.

Consider What You Really Want and Talk With Your Lawyer

Mediation is something you will need to address in any family law matter. It is essential,  therefore, that the parties enter the mediation process on the basis of knowing precisely what it is that the relevant party wishes to pursue and achieve as an outcome. At the same time, the parties need to understand that the desired outcome may not be possible and some form of compromise is essential.

The parties need to think carefully about the issues that form the basis of the dispute that will be subject to mediation. This will require close collaboration and understanding of the parties’ lawyers throughout the mediation process. If there is one rule that cannot be pushed aside, it is that the parties must communicate openly and frankly with their respective lawyers.

Open communication between lawyer and client will make sure that the lawyer is in a position to ensure that the mediator is fully informed of the respective parties’ attitudes and positions. That will enhance the mediation process and ensure that there are no hidden agendas or ulterior motives that complicate the mediation process.

Unsure about when to compromise, and when to stick to your guns? Contact Bentley’s Barristers & Solicitors next time you need a divorce lawyer in Shepparton, Pakenham, or anywhere else in Melbourne for guidance.

Engage with Bentley’s Barristers & Solicitors

As expert family lawyers in Melbourne, Bentley’s Law has been providing family law advice, support and guidance to clients for over thirty years. We are very experienced in mediation and the processes of the Federal Circuit and Family Court of Australia.

Should you have any queries concerning mediation, contact us for a no-obligation 30-minute consultation.

Bentley's Law

Tel: (03) 9419 6066                                                    www.bentleyslaw.com.au