24 February 2023

Mediation process in Australia

JB Solicitors


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Family mediation is common in family law matters, especially if there are parenting arrangements needed for children.
Australia Litigation, Mediation & Arbitration
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Courts usually urge disputed parties to go through the mediation process if their circumstance doesn't require court judgement. But what is mediation? Mediation is a confidential process that aids conflicted parties reach an amicable agreement. Mediators or family dispute resolution practitioners (the neutral third party in mediation sessions) are the people responsible for:

  • Facilitating communication
  • Promoting understanding between parties
  • Assisting parties identify their needs, rights, and interests
  • Using creative problem-solving techniques during the mediation session
  • Not taking the side of either party or making decisions for them

Every agreement made during mediation is legally binding since lawyers and/or solicitors are responsible for the process. Information revealed during this process cannot be used later in a trial or judicial proceeding. Lawyers and mediators are skilled legal professionals who can act as mediators during the mediation process. Read on if you want to know more information about mediation.

The Importance of Mediation in Family Law

Family mediation is common in family law matters especially if there are parenting arrangements needed for children. But how important are children in family law matters in Australia? The Family Law Act 1975 contains provisions made for children, property, and maintenance. In fact, Section 60CC of the Act states two primary considerations of the child's best interests. These are the children's rights to:

  • Having a meaningful relationship with both of their parents, relatives, and other significant people in their life
  • Being protected from any form of harm, abuse, or neglect.

Courts urge disputed parents to undergo mediation since they want to also see their ability to compromise and prioritise their children's best interests. Mediation enables disputed parties to have more control over their situation. Parents can show how much they prioritise their children through this informal process, however, they should ensure that all their suggestions:

  • Focus on the child's best interests and not theirs
  • Meet realistic expectations
  • Do not berate the other party
  • Address issues that are at hand

Mediation Session Process: Commonly Used Steps

1. Contacting a Family Dispute Resolution Practitioner

Indeed, disputed parties only want the best mediator that can aid them in their family law matters. But where can disputed parties go when they need to undergo mediation? JB Solicitors is a family law firm that specialises in out-of-court family dispute resolution services like mediation.

Our family law services start at an affordable fixed fee for people who want effective and efficient mediation sessions. After you contact our firm, you may also schedule an appointment for a consultation. We can advise on the next steps you can take after the consultation.

2. Identify Issues

The next step is to identify issues and concerns. Divorcing parents should talk to each other about what kind of concerns they will address during the mediation process. They may prepare a list so the mediator may have a general idea of the issue at hand. There are two commonly addressed issues during mediation.

Parenting Arrangements/Parenting Plans

Parents should ensure that the parenting arrangements proposed are practical and in the child's best interests. Mediators can explain and ensure that these factors are upheld during the session. A parent may also address if his/her child is at risk of violence, abuse, or neglect from the other parent.

Moreover, parents may also address their child's needs in the arrangement. Once parents have agreed to the parenting arrangements, they may put their agreements in a parenting plan. They may then go to court to have the parenting plan legally enforced into a consent order.

Note: If the parties involved in the dispute still disagree after mediation, they may opt for a court hearing. The court will proceed with making a parenting order on behalf of the divorcing parents' child.

Property Settlement

Property settlement is the legal process of dividing a couple's finances and assets after divorce or separation. Disputed couples may also rely on the mediation process in order to decide what happens to their assets and finances. They should have the following information when engaging with a mediator:

  • When the relationship started
  • The value of the property pool
  • Length of the relationship
  • The non-financial and financial contributions of each party
  • Each of the party's future needs

Note: It's common for spousal maintenance proceedings to arise during property settlement. This is a type of financial aid given to parties who have unfavourable financial positions. The higher-earning partner is responsible for paying spousal maintenance for his/her lower-earning partner.

3. Gather Documentation

It's important for parties to gather documentation during the mediation process for their mediator. Documentation is necessary to back up any claims a person makes during the session. Let's use an example. For instance, Barry and Meg are a divorcing couple who address their property settlement matters in their mediation session.

Barry claims that he owns his car since he has provided the car's registry papers with his legal name on them. He also included all the receipts for the car's maintenance which he paid for. As a result, the mediator decided that the car will go to Barry since he legally owns it and has been providing maintenance.

4. Prepare to Compromise

Couples should always have this in mind when going through mediation. The goal of mediation is to allow disputed parties to reach their own agreement. Indeed, it is hard for most divorcing or separating couples to agree on parenting arrangements and property settlement. However, couples who fail to compromise, listen to, and understand each other will face more family disputes and confusion.

In some situations, a party may also ask someone to come with them during the mediation process. Let's use Barry and Meg again as an example. For instance, Meg hasn't been dealing with the divorce well, and she just needs her best friend Paula for emotional support. Barry reluctantly agreed to Paula accompanying Meg during the mediation process.

5. The Decision of the Family Dispute Resolution Practitioner

We ensure that the decision in our mediation services is just, fair, and legally binding. If parties reach an agreement during the session, we may also help with lodging a consent order to the court. A consent order is a type of order which sets out two parties' agreement about a legal matter. Once the court approves the consent order, they may turn them into a final court order.

Our Alternative Dispute Resolution Services

JB Solicitors continue to provide quality mediation services for disputed parties in family law matters. Should parties still fail to agree on mediation, we can also represent them in court.

Our experienced family lawyers can ensure that our services adhere to the client's interests during property settlement or the child's best interests during parenting arrangements.

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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