What You Need To Know About Divorce And Family Mediation

Separation and divorce are momentous events and emotions can run high.  Discussions about important issues such as the future care of children and property division are often extremely difficult and many couples are unable to reach consensus on their own.

When a relationship ends, mediation is often the best option for separating couples.   It is an alternative path to litigation and often takes place before the court process. When proceedings are issued, if the parties have not attempted mediation, the Court will often order for it to occur in any event.

This article outlines the mediation process and offers some practical guidance for separated couples.

What is mediation?

Mediation is a safe, structured, interactive and confidential process by which an impartial third party (the mediator) helps people in conflict to negotiate a mutually acceptable agreement/s on unresolved disputes. The mediator’s aim is to assist couples to find outcomes that both parties are prepared to accept.

Outcomes are not imposed on the parties by the mediator.  Rather, parties are assisted to make their own decisions and reach their own conclusions.

Under Australian family law, separated parents are required to attend Family Dispute Resolution before they can apply to the Court for parenting orders.  Exemptions may be made in some circumstances such as family violence or child abuse in the relationship or when one party is unable to participate.

The aim of mediation is essentially to avoid the need for couples to go to court.   It offers numerous advantages over court intervention and is a generally successful process.  

Benefits of family mediation in divorce situations 

The most obvious benefits are that that mediation is usually much quicker, a reduction in costs and far less traumatic than litigation.  Participants control the process and can focus on issues that are important to them, so they feel empowered. When the matter is before the Court, a Judge, Magistrate or Registrar make decisions for you.

In addition to saving time and money, mediation also has the potential to preserve personal relationships which can be extremely important in family divorce situations. It also keeps disputes private, whereas court proceedings are public.

Who are the mediators?

Mediators are usually trained, qualified professionals who specialise in family disputes.  Their role is to remain neutral and simply act as facilitators helping people negotiate to find common ground.   

Mediators provide a safe and supportive environment where people are encouraged to talk openly and candidly.  Mediators are skilled in highlighting issues and clarifying the facts, and help parties set aside their own preconceptions, formulate options and consider various alternatives.  

If you are going to mediation, it is important to know that no decision will be made for you.  Agreements have to be reached by the parties themselves.

Mediation and parenting matters

Mediators would remind parties that they are to put the well-being of the child or children first.   Court proceedings can be protracted, and can cause distress and uncertainty, whereas mediation can help couples reach good decisions about parenting matters quickly and with far less trauma for all concerned.  

Mediation is generally successful in assisting couples resolve their differences about family issues such as child support and living and care arrangements for the children.  If agreement is reached, a parenting plan can be written up as a record of these arrangements.  This plan can then be formalised by lodging a Consent Order at the Family Court. 

Mediation and property arrangements

In divorce situations, it can be challenging to reach agreement on the division of assets and liabilities.  

Mediation can help couples cut through all the emotion and negotiate a way forward in terms of a property settlement.  The skilled mediator is there to help couples make rational, considered decisions and to guide them through the process so that resolution can be reached without unnecessary and distressing delays.

Mediation can help pave the way for a ‘better’ divorce

Divorce is a separate process to Family Court processes such as applications for property orders or parenting orders. 

Mediation can help pave the way for a more amicable parting for married and de facto couples.  Because it helps you reach agreement on any areas of conflict including property, spousal and child support issues, it enables you to ’get your house in order’ ahead of divorce proceedings.

In Australia, the Court will need to be informed of an ‘irretrievable breakdown’ of a marriage and that the couple has been separated for at least 12 months prior to filing the divorce application.   It is therefore important that both you and your former partner agree on the exact date of separation.   An email or text message between the two of you wherein the date is mentioned is a good idea.

How long does mediation take?

Mediation can take a couple of hours or can take place over several days.  It depends on the number and complexity of the issues in dispute.  Mediation may result in agreement being reached on some – or all – of the issues.

To conclude

If you are getting divorced, it is advantageous to get specialist advice from a qualified family lawyer early on.  This will ensure that you get advice specific to your unique circumstances as well as guidance on what steps to take.  

West Family Lawyers in Perth has a strong reputation for care, integrity and strength and our highly experienced team has a broad and complimentary skill set to successfully handle even the most complicated family law matter.

If you are considering separating from your spouse, or have already separated and are looking for compassionate guidance and advice on any family law issue including mediation, you are welcome to get in touch with our team on 9380 9111 or through our website www.westfamilylawyers.com.au.  You can also find comprehensive FAQs on a range of family law issues on the website.

Please note that this article is for information purposes only and should not be construed as legal advice.

Mark Cheveralls

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.

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