05/01/2023
So, you and your former partner agree to explore Family Mediation as a way to reach an agreement that resolves the issues arising from your separation outside of court.
What next?
In this post I provide my top tips on preparing yourself for family law mediation.
Who attends mediation?
Mediation is attended by the parties in dispute, with or without lawyers being present.
Should you and your former partner both agree to appoint me as your Nationally Accredited Family Law Mediator, I will chair the Mediation as a qualified, independent and impartial third party.
My mediator role is to guide the negotiations and help facilitate positive communications. I will assist you and your former partner to find arrangements that work best for the children and the family and/or to reach a property settlement agreement.
When is mediation required by the courts?
In a parenting case, except in limited circumstances (including urgent matters and cases involving family violence), parties will be required to attend a mediation/family dispute resolution and make a genuine attempt to resolve their parenting dispute prior to issuing a Court application.
In financial matters, there is a requirement the parties make a genuine effort to reach an agreement before applying to the Court. Even though it is not compulsory to mediate prior to applying to the Court for financial orders, the best proven way to reach an agreement is to engage a mediator, either with or without lawyers, to attempt to resolve your matter or at least narrow the issues in dispute. Also, even when you have applied to the Court for financial orders without first participating in mediation, you will probably be told to participate in mediation before the Court will be prepared to hear your case.
Although not as formal as the Family Court process, mediation is a serious process which successfully resolves family law disputes most of the time. Being as prepared as possible for your mediation will ensure higher prospects of success.
The following tips should assist you to prepare for mediation.
1. Consult with a lawyer
It is important to get advice early. A lawyer can help you:
• understand your legal rights, entitlements and responsibilities;
• explain the mediation process;
• with any documentation that may be required to support your case; and
• formulate a proposal.
Knowing how the mediation process works and where you stand can put you in a good position to negotiate with your former partner and help you to make good decisions early.
Your lawyer can also provide advice on the cost of proceeding to court if mediation is unsuccessful. This can be taken into account in considering any proposals made by your former partner.
2. Gather any required documentation
As mediator I may ask for information/documentation to be provided to me and/ or exchanged with your former partner prior to the mediation. You should ensure that you comply fully with this request and that the information/documentation is exchanged in advance of the mediation to allow all parties a reasonable opportunity to review the material.
This is particularly important in financial matters as you will need to determine the value of the assets, liabilities and financial resources in order to have productive property settlement negotiations at mediation.
3. Identify the key issues
Make a list of all the matters you want to be resolved at mediation.
In a parenting case, this may include how many days per week you would like the children in your care, the changeover location, what school the children will attend and arrangements for school holidays and special occasions.
In a financial matter, this may include who will retain the former home (if you would like to retain the home you should consider whether you have the ability to refinance), are there any specific items of property/furniture that you would like to retain, will there need to be an adjustment of superannuation entitlements.
You should also make a list of the matters that you think your former partner will want to be resolved at mediation. This will help you foresee any factors which may prevent you from reaching an agreement and assess what options you have to overcome these hurdles.
4. Be open-minded and cooperative
Whilst it is important to attend mediation with a clear idea of what you want to achieve, mediation is unlikely to be successful if you are not prepared to compromise.
In addition to your ideal outcome, you should consider alternatives outcomes. Identify the areas that you are willing to concede on and the areas that you know your former partner will not concede on. You may be able to use these as leverage to adapt the outcome to suit you.
Mediations are confidential. The parenting proposals made and/or financial offers exchanged cannot be used against you at a later date if your matter does end up in court.
Approach the negotiations in good faith and with a constructive mindset. If emotions become heightened during the mediation process, ask to take a break and step away from the negotiations to gather your thoughts.
Benefits of reaching an agreement at mediation
Resolving your matter at mediation will save you time and money and will reduce stress.
The court process is expensive, time-consuming and emotionally taxing. Mediation provides you and your former partner with an opportunity to avoid this process and to reach a collaborative outcome rather than having a Judge determine your case. This inevitably assists with maintaining a healthy and amicable relationship with your former partner.
Not all cases can be settled at mediation however, even where a final agreement cannot be reached, mediation can be a useful step to narrow down the issues in dispute.
How I can help?
If you are considering mediation please feel free to phone me on 0403465449 or send me an email to [email protected].
