What Is Mediation?
Separation or divorce can be a distressing time for the parties, particularly when children are involved. Delays in the legal process can often exacerbate an already stressful situation.
It’s well-known that there is significant congestion at the Family Court in resolving matters. To avoid emotionally taxing and expensive delays, mediation is actively encouraged as a faster way of resolving family law disputes. In the majority of family matters that come before the Court, parties are required to have attended Mediation before their case is either able to be heard or can be progressed.
This article answers some of the key questions around mediation, how the process works and what outcomes can be expected.
What is mediation?
Mediation falls within the category of Alternate Dispute Resolution (ADR) – an umbrella term used to describe a number of out-of-court processes whereby parties can resolve their disputes privately.
As a rule, ADR processes are not only faster than traditional court proceedings, but they also cost significantly less. These informal processes are also empowering for parties, offering them greater flexibility and increased opportunity to take ownership of the outcomes rather than asking a stranger (a judicial officer) to determine the result.
In mediation of family law disputes, a neutral and impartial third party assists the participants to reach a resolution in a safe and respectful way by:
- Supporting parties to communicate clearly and respectfully
- Helping to determine the issues that need to be resolved
- Finding common ground
- Highlighting the various options and solutions available to parties
- Focusing on the child/children’s best interests (if it is a parenting dispute)
- Working out mutual agreements on some or all of the issues
Mediation is a confidential process.
The mediator is not able to provide legal advice, determine facts or decide the outcome of the case. They will however assist parties communicate more effectively to reach a voluntary agreement.
Who are the mediators?
There are two types of mediators.
A dispute involving parenting arrangements for children generally requires parties to engage a qualified Family Dispute Resolution Practitioner (FDRP). A FDRP is accreditated and registered to conduct parenting mediations and issue a mediation certificate (known as a s60i certificate) following mediation. That certificate is generally required before a party is allowed to file an Application in the Family Court for parenting orders.
A second type of mediator is someone who has undertaken mediation training. Sometimes the mediator is also a lawyer and sometimes not. This sort of mediator generally does not conduct parenting mediations, unless the mediation certificate is not required (in the case of parenting proceedings already being on foot). They will conduct mediations on financial matters, such as property settlements, spousal maintenance and child support, or all of them at the same time.
What is involved in the mediation process?
Although mediation is a more informal and flexible process than a court of law, it still follows a structure. This helps to speed up the process, clarify issues and identify points of conflict so that solutions and voluntary agreements can be negotiated.
Some preparation is required before the mediation process starts. The mediator will either meet with each party, either in person, by videoconference or telephonically – to explain how the process works and what the parties can expect. The mediator will also answer any questions.
The mediator makes an opening statement which includes a description of the roles of all the parties and the process (which both parties need to agree to). The ground rules to the process are also established. Both parties are given an opportunity to state their position and explain why they are there and what they hope to have as an outcome. This process helps to clarify the situation for all parties.
During the discussions that follow, both parties have the opportunity to present their perspectives either during joint discussions, in private with the mediator or with their lawyer or support person. The mediator will assist parties to negotiate towards solutions by establishing concerns, identifying options and exploring solutions.
If a solution is reached, the mediator can put the terms in writing.
Sometimes, parties are assisted by their own lawyers during a mediation, and sometimes not.
Where does mediation take place?
It takes place in a neutral environment, with parties engaging either face-to-face around a table or based in separate rooms with the mediator going between the two. This is called shuttle mediation. The process can also take place over a telephone conference call, but is generally less effective.
How long does the process take?
The complexity of the situation and the level of conflict between the parties will determine how long the process takes, but as a general rule, mediation takes between half a day to a full day. The parties may elect to resume mediation at a later stage if any interim agreements reached during the initial process need to be trialled.
What type of dispute can be resolved through mediation?
Mediation can be used to resolve a variety of family law disputes at any stage and can even be undertaken during court proceedings. The process can help parties reach agreements on disputes relating to:
- Property matters
- Parenting matters
- Child support issues
- Parental responsibility (including instances where court orders are already in place)
- Spousal maintenance
- Issues with implementation/breaches/contravention of existing orders
What if mediation doesn’t yield an agreement?
If a resolution isn’t reached during mediation, the most likely next step is for parties to continue their negotiations either directly or through their respective lawyers. Parties may elect to resume mediation at a later stage.
If an agreement can’t be reached through mediation, the parties can take the matter to court where a judicial officer will make the decision for the parties.
All information provided in this article is for general informational purposes and does not, and is not intended to, constitute legal advice.