Should I Attend Family Law Mediation?
A relationship breakdown doesn’t have to mean you are headed for the courts. On the contrary; you may be surprised to know that many Australians are able to sort out their parenting and property arrangements privately.
Agreement can be reached either independently or with the help of mediators and Family Dispute Resolution Providers. In fact, it is a Family Court requirement in Australia that separating couples attend mediation and make a genuine attempt to resolve their issues before filing a court application. Some exceptions may be made to this mandatory requirement, such as situations of family violence.
We know from experience that mediation is a productive pathway for separating couples to attempt resolve disputes. Going to court is costly, time-consuming and stressful and there is no guarantee that a desired outcome will be achieved. Rather, the Court process means you are engaging a third party (Judicial Officer) to make your decision for you. On the other hand, mediation is generally a faster, more cost-effective and less traumatic process for all the parties involved, and the outcome is based on your decision. It can also be empowering – the parties have control in negotiating their own future.
So, the short answer to the question of whether you should attend family law mediation is ‘yes’.
You may find the following information helpful if you are considering embarking on the mediation pathway.
A brief summary of family law mediation and how it works
For parenting matters, family law mediation should be facilitated by a qualified, experienced Family Dispute Resolution Practitioner (FDRP) and is basically a form of ‘assisted negotiation’ to help couples negotiate solutions to their dispute/s. The FDRP’s role is to provide a safe environment and to facilitate respectful communication to help parties find mutually agreeable outcomes.
Depending on circumstances, mediation can take place face-to-face with the parties together in the same room, or it can take place with parties in separate rooms. This is known as shuttle mediation. In this instance, the facilitator travels between the different locations to convey information, offer advice, suggest alternative solutions and so on.
The process usually requires anywhere between a couple of hours to a full day – and is confidential. Although it is not a requirement, it can be advantageous to have your lawyer present during mediation. Your family lawyer has your children’s’ and your best interests in mind and will be helpful during your negotiations, plus they can give immediate legal advice and draft legally binding orders if any agreements are reached. Remember, no decision will ever be made on your behalf during mediation. Agreement has to be reached by both parties together.
Helpful tips for your mediation
Our experience at West Family Lawyers is that mediation is usually successful, enabling parties to come together in a safe, constructive and respectful environment to discuss disputes and negotiate acceptable solutions.
Here are some suggestions for mediation that our clients have found very useful:
1. Thorough preparation is key. Your family lawyer will prepare the framework for mediation, but it is important that you are well-prepared from a personal and emotional perspective too. Writing down your goals can be a good way of clarifying your thoughts on the key issues, working out what you are prepared to live with and setting realistic expectations.
2. Know your options. It is not always possible to reach agreement during mediation and sometimes only some of the issues under dispute are resolved. It is important that you consider the possibility of the various scenarios and have a clear understanding of what the next step would entail, even if it may involve litigation. If you are aware of the possible implications in terms of cost, duration, emotional upheaval etc, you will be able to make more informed decisions during mediation.
3. Keep an open mind and a positive attitude. We understand that this may be extremely challenging, but you will be more likely to reach a satisfactory outcome if you are prepared to make some compromises. Both parties may have differing views about the issues and your former partner may also have to compromise. Mediation is not all about winning or about being right; it is about finding common ground and negotiating satisfactory outcomes.
4. Have a long-term perspective. Separation can be a time of enormous turmoil and heightened emotions, but in our experience, it is helpful to take a long-term view on the situation. Are you sure the issues you are disputing will still be relevant as time goes by? Avoid pursuing something just to achieve the moral high-ground or a short-term gain.
5. All offers are worth considering. Think of an offer as an opportunity. Instead of dismissing an unsuitable offer summarily, use it as a chance to learn more about what the other party wants. Find out what information led them to make the offer. Similarly, if you make an offer, provide the other party with the reasoning behind your proposal. Communication is crucial and knowledge is power. With the skilled guidance of the mediator, both parties can gain a greater understanding about one another’s perspectives and hopefully negotiate an equitable agreement.
West Family Lawyers has extensive experience in family law, including mediation. Our compassionate and approachable team can help with the preparation for your mediation as well as guide and support you through the process.
Please note that this article contains general information only and does not constitute legal advice.
To find out more, please visit our website www.westfamilylawyers.com.au. We have a comprehensive FAQ section on our website and if there is any other question you would like answered on any aspect of family law in Perth, please get in touch through the website or call us on 08 9380 9111.
Mark is a senior lawyer with a broad experience in family law. His blend of business management experience and legal competencies is particularly beneficial to resolving complicated family law disputes concerning property and children.
Mark is settlement-focused and energetic about negotiating fair outcomes with a track record of brokering good results for his clients. He is part of a small team of trusted family lawyers in Perth practising in the Family Court of Western Australia.
Find out more about Mark here.