Introduction to Mediation in Family Law

Due to the backlog of the court system, many families wishing to be heard before the Family Court or Federal Circuit Court are experiencing ongoing delays and significant financial and emotional stress. As a result, many families are turning to alternative methods for resolving their dispute.

Family Law Mediation is a well-recognised alternative dispute resolution process that is often utilised to resolve family law matters. It is a quicker and more affordable method for resolving parenting and property disputes. In fact, a Registrar will often make orders for parties to attend mediation prior to having the matter heard by the court in an attempt to resolve the matter early.

What is Mediation?

Mediation is a process that is facilitated by an accredited mediator who acts as an impartial and neutral third-party. The mediator assists participants to reach an agreement in a safe and respectful environment. The mediator will identify the issues, develop options, and consider alternative solutions to resolve the matter without having to involve the Family Court or Federal Circuit Court.

What are the Benefits of Family Law Mediation?

1. Increased control, flexibility, and convenience

• Parties can control the overall process, whilst the court proceedings are generally more rigid. Examples include:
• Parties can agree on where and when they wish to have the mediation, therefore it will conveniently adapt to their needs.
• Mediation is highly flexible and more informal in comparison to court proceedings in order to accommodate the needs of the individual parties.
• Parties can jointly select an independent mediator and negotiate and agree on the fees for engaging the mediator’s service.

2. Reduction in delays and costs

• Due to the Court experiencing significant backlogs, parties waiting to have their matter heard before the Court will continue to incur expenses, for instance costs for retaining legal representation.
• The mediation process can be tailored to each circumstance so that unrelated costs are avoided.
• Parties are able to schedule their own mediation date and location, affording more certainty to the parties. On the other than, the Court may make directions to adjourn the matter to a later date, resulting in more delays.

3. Confidential process

• Mediation is a confidential process. All discussions that occur and documentation exchanged during the mediation must remain between the parties, their legal representatives and mediator.
• Parties are generally restrained from using the information obtained at the mediation for their own advantage, however, there are exceptions in specific circumstances.

4. Supports Positive Relationships

• Mediation provides parties with the opportunity to resolve the matter in an amicable manner, thereby increasing the prospects of a positive relationship between the parties. This is particularly important where there are minor children involved.

What is a Pre-Mediation Conference?

Parties to a mediation may attend a pre-mediation conference with the mediator, which is an opportunity for the mediator to explain the mediation process and suggest or make amendments to the process so that it is tailored to each party’s requirements.

The conference will also provide clarity as to whether any further materials or preparation will be required prior to the mediation, for example, should financial documentation be exchanged or whether a market appraisal or valuation is required. An understanding of the value of all relevant assets prior to the mediation will generally deter conflict as to value of the assets at mediation, thereby reducing delays and emotional stress.

The mediator will generally make a request for a Position Paper, which is an overview of their respective party’s position and what issues they wish to resolve at the mediation.

What occurs at Mediation?

At the mediation, the general process is that there is an initial joint session between the parties involved so that there is an opportunity for them to set out their position, interests, concerns and what they are hoping to achieve. Parties may then separate where they will have a private session with the mediator to discuss possible agreements to resolve the issues. The mediator may request that parties return to a joint session to discuss the outcomes and the agreements that have been reached. If there are no agreements that have been reached, then the mediator will continue to assist the parties by narrowing the issues to be considered by the Court moving forward.

Legal representation is permitted (and encouraged) at mediation as a solicitor can assist their client throughout the process, including all preparation work and at the pre-mediation conference. Solicitors can advise their client on any offers that they receive from the other side, or, offers they plan on making. Solicitors will also be responsible for drafting all documents necessary for recording the agreement in the event that the parties do reach a joint outcome.

Is Mediation Appropriate for Your Family Law Matter?

Mediation is a popular dispute resolution method in family law. It differs from arbitration, another dispute resolution method, where parties present their arguments to an arbitrator who then makes a binding determination (that is, a judgment that may be legally enforceable once registered with the Court). However, Arbitration is limited to property settlement related matters.

Mediation can assist in resolving a broader range family law related disputes, including:

• Property/financial settlement disputes
• Parenting disputes
• Spousal maintenance
• Interim property matters
• Child support issues
• Contravention/breaches of existing orders
• Issues relation to the implementation of orders
• Disagreements over issues relating to parental responsibilities such as passports and overseas travel involving children, school enrolment, and medical issues relating to a child.

Mediation can be commenced at any point in time of the dispute, and it may occur even prior to instituting court proceedings or whilst court proceedings are already in progress.

Agreement – Is it Binding?

If parties reach an agreement at mediation, they will then need to formalise their agreement with the assistance of their legal representation. Consent Orders may need to be drafted in order to formalise the agreement and make it binding on the parties.

No Agreement – What Happens Now?

Parties unable to reach an agreement will have the following options:

1. Continue to negotiate between themselves, either directly or through their respective lawyers;
2. Attempt mediation again in the future;
3. Participate in a Family Law Arbitration if the issues only related to property matters; or
4. Continue to pursue their matter through the Family Court where a Judge will ultimately make a decision for the parties.

Who is the Mediator?

The mediator is often a family law solicitor who is specifically trained through their accreditation from a body such as the Australian Institute of Family Law Arbitration and Mediation. To be accredited, they must complete the National Training Standard.

The mediator is not an advisor and is not permitted to make a determination. The mediator’s role is merely to assist and support the parties in reaching an agreement.

Parties may jointly agree on who they select as the mediator and the costs may be even shared between the parties or otherwise as agreed.

JB Solicitors’ Mediation Team

JB Solicitors has a leading team of lawyers who have amassed extensive knowledge and expertise in the area of Family Law.

Our Family Law Department is led by its principal, John Bui, a recognised and accredited family law Mediator and Arbitrator by the Australian Institute of Family Law Arbitrators and Mediators. Accordingly, he is highly skilled and well equipped to mediate all family law related matters.

John Bui has been recognised by the Law Society of NSW Journal and was only one of ten lawyers across Australia to have been nominated for the 2018 Lawyer’s Weekly 30 Under 30 award for his outstanding work in the area of Family Law.

JB Solicitors is experienced in handling all types of family law matters. You can be confident in our ability to provide you with a leading professional mediation service that will exceed all of your expectations.

We also offer fixed fee pricing on our mediation service – click here to find out more.

If you would like to engage JB Solicitors’ mediation services, or simply wish to learn more, please feel free to visit our main office in Canley Heights, or alternatively, contact us on: