Australia: The who, what, when and why of Family Law Mediation

Last Updated: 25 September 2019
Article by Malcolm Gittoes-Caesar, Karina Ralston and Adam West

Recently well-publicised delays and backlogs in the Family Courts have continued to take a significant toll on parties involved in Family Court proceedings. For this reason, the Court is currently pushing for parties to make genuine attempts to resolve their disputes privately through Family Mediation, one of the more popular Alternate Dispute Resolution processes.

With Coleman Greig now proud to offer both Family Law Mediation and Arbitration services, we are hoping to pre-emptively answer some of the questions that potential mediation clients may have by taking a closer look at the overall concept of mediation, as well as just how mediation can be beneficial within the context of Family Law matters.

What is Alternate Dispute Resolution (ADR)?

ADR is an umbrella term used to describe a variety of different processes, including mediation and arbitration, which parties can use to resolve their disputes outside of court.

There are many benefits of ADR processes. For example, as compared to court proceedings, ADR:

  • Is faster;
  • Is more cost effective;
  • Is confidential;
  • Promotes the interests of the parties;
  • Empowers the parties; and
  • Is flexible and less formal than the traditional court process.

One of the most commonly used ADR processes within Family Law is Family Mediation.

What is Family Mediation?

Family Mediation is a process where the parties involved in a dispute are assisted by a Family Mediator (a neutral and impartial third party) to help resolve their dispute. A mediator typically listens to the parties and helps to identify the disputed issues, as well as the needs, goals and options available to sort through each issue.

The aim of Family Mediation is to assist the parties to engage in discussions relating to their dispute, in a setting within which they feel comfortable. The Family Mediation will help the parties move towards achieving certain outcomes, and may enable an agreement to be reached with the capability to finalise the dispute, avoiding costly court proceedings.

When is Family Mediation suitable?

Parties in Family Law matters can participate in Family Mediation to resolve a dispute at any time, either prior to instituting court proceedings, or whilst proceedings are taking place. Family Mediation can help the parties to reach agreements on:

  • Property disputes;
  • Parenting disputes;
  • Spousal maintenance;
  • Interim property matters;
  • Child support issues;
  • Contravention/breaches of existing orders;
  • Issues relating to the implementation of orders; and
  • Disagreements over issues relating to parental responsibility (e.g. passports and overseas travel involving children, school enrolment, and medical issues relating to a particular child). This can include instances where parties already have court orders in place.

Family Mediation is now widely used, and is the preferred alternate dispute resolution option within the Family Law Courts. Courts will now order parties to attend Family Mediation in the majority of matters that come before the court, prior to the court hearing matters and making decisions for the parties.

Preparing for Mediation

Prior to a Family Mediation occurring and with the assistance of the mediator, both parties are required to undertake certain preparations. For more information on how to prepare for a Family Mediation, we suggest reading through our Plain English Guide to Preparing for Family Mediation.

How long does Family Mediation take?

This largely depends on the complexity of the matter, as well as the level of conflict between the parties, for example, less complex disputes may only require half a day, whereas others may require a full day. Parties might also agree to pursue further Family Mediation at a later date so as to trial any interim agreements which were reached during the initial mediation.

Is the Outcome Binding?

As the aim of Family Mediation is to assist the parties in being able to reach an agreement themselves, the mediator is not permitted to make a determination, nor do they have the power to ratify any agreement reached.

If the parties are able to reach an agreement at Family Mediation, they will then have the option to formalise their agreement, which is usually done with the assistance of lawyers.

What happens if Mediation doesn't result in an agreement?

If the parties are unable to reach an agreement during Family Mediation, they will generally continue to negotiate between themselves, either directly or through their respective lawyers. As stated earlier, the parties may agree to participate in Family Mediation again in the future.

Where parties are unable to resolve matters themselves, even after having attempted Family Mediation, they can pursue their matter through a court process where a Judge will ultimately make a decision for the parties. Alternatively, the parties may wish to attempt Family Arbitration, another form of ADR (see our Plain English Guide to Family Arbitration).

How is Family Law Mediation different to Collaborative Family Law?

The key difference between the two is that collaborative family law has no neutral third party (or mediator), rather, both parties are represented by lawyers who, with the parties, will attempt to enter discussions surrounding the resolution of a dispute. The process usually occurs over a period of time, whereas the key to Family Mediation is that the parties (usually with their lawyers) convene on a single day, with the aim of attempting to resolve the matter with the assistance of the mediator.

Under the collaborative law model, if the process does not result in a successful outcome and one of the parties commences court proceedings, both parties must obtain new lawyers (this is due to the fact that the current lawyers will have worked collaboratively with the other party, thus there is a conflict of interest). If Family Mediation is unsuccessful, however, the parties can retain their lawyers for any court proceedings that might follow.

How can Coleman Greig help you?

Coleman Greig provides a professional and accessible mediation service specifically catering for family law matters. Our Family Law Mediators are all fully accredited through the Australian Institute of Family Law Arbitrators and Mediators as well as being Accredited Specialists in Family Law through the Law Society of New South Wales. By also practising as lawyers exclusively in the area of family law, each of our mediators is highly skilled and experienced in family law, and is therefore well equipped to mediate in this area of law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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