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Why Mediation?

Mediation is a more time & cost-effective method of resolving disputes, if the two parties cannot reach an agreement privately or via mediation then a court will decide the matter for you, this means lengthy processes, hungry lawyers, and delayed communication which could end costing each party $60k - 100k ++ in legal fees.(on average)

 

Separation and Divorce have a major impact on your children, yourself and your extended family.  The parties need to recognise that a relationship will exist between them after the divorce - think children, extended families, common friends, etc.

This relationship will be tested time and again, even after the children have left the nest and are out on their own.

There will be birthdays, graduations and other school-related activities, weddings, grandchildren, funerals and other important events that will require some contact between the parties. Co-operation between the parents will go a long way in reducing the stress and anxiety in the lives of their children. As parents cope better, their children do so as well.

Mediation covers more than the property settlement and parenting matters, it covers how the parties will communicate during and after the mediation. This is a critical element of the mediation process. 

What happens in Mediation?

Before commencing mediation the mediator will consider the best process for mediating your dispute, taking into account suggestions from all parties where possible.

The mediation will commence with an explanation of the process, followed by a discussion about the background of the matter and issues in dispute.

The mediation itself is flexible and can be tailored to the circumstances. Mediators may assist negotiations by asking questions, encouraging open discussion, offering different perspectives and expressing issues in alternative ways.

 

Parties may be encouraged to identify and test the consequences of potential solutions. It is common for the mediator to meet with the parties jointly and separately, and further mediation sessions can be scheduled if necessary.

 

If an agreement is reached about all or part of the dispute, the details of that agreement will usually be recorded and signed by all parties before the end of mediation.

Tip; Mediation is a necessary step before you can bring a matter to Family Court, there are exceptions to this, however, the general rule is that mediation must be attempted first.

How does the process work?

Presentation

Remember; You want to reach an agreement - that means you will both need to compromise, a little flexibility early on will save you thousands in legal $$$ and in avoid emotional stress & turmoil.

The Mediation Process

Family Mediation is a structured process:

  •  Each party has an initial consultation about the process

  • Each party has an interview with the mediator

  • Both parties attend the mediation with the mediator

  • The mediator outlines the terms of the Agreement to Participate in family dispute resolution (to set down guidelines for participation in the mediation)

  • Each party describes the issues to be resolved from their particular point of view

  • From these issues, the mediator creates an agenda; listing the issues of both parties

  • Each issue is discussed, as each parent/party states their underlying concerns

  • From such concerns, options are generated by both parents/parties

  • The parties negotiate on these options

  • After settlement of the issues is achieved, the mediator prepares the written agreement and presents it to each party 

Preparation prevents poor mediations!

How do I prepare for mediation?

You can improve the quality of your mediation by considering:

  • what issues are in dispute, including the facts and sources of conflict

  • what is important to you in any resolution of your dispute - the interests that you wish to preserve or pursue may be different to an outcome sought through a court

  • how best to communicate this information, both to the mediator and the other party

  • what you would say at the start of the mediation, to assist in resolving the dispute

  • what the other party's aspirations might be and how these might be accommodated in any offer of settlement

  • possible contents of an offer and methods of communication

  • what costs have already been incurred, are likely to be incurred, and what part of these might be recovered

  • the possible outcomes if the matter were to proceed to court

Using gadgets

Remember; don't put anything in writing that you wouldn't want read out aloud in court!

Mediation or Court?

Why Mediation is a better alternative to contested court proceedings...

Research shows better long term outcomes for parents and children where the parties mediated.

More parties are satisfied with the divorce process where mediation is used to agree the terms of the dispute.

 

Contested Court Proceedings are not good for parties, for numerous reasons;

  • Court is based on an adversarial model.

  • The parties lose control of the outcome.

  • It is costly.

  • It does not foster good communication.

  • It is more time-intensive.

Procedures


The Family Law Act 1975 (the Act) requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for an order in relation to a child. Part VII of the Act covers applications for several different types of orders relating to children.

The most common are applications for parenting orders; that is, an application asking a court to make orders about the parenting arrangements for a child. You cannot simply make an application in court and avoid other dispute resolution methods.

Court Can be used as a weapon, a last-ditch effort to make the other party suffer! Whilst this might seem the right choice at the outset when you are angry and hurt - it will ultimately cost both parties far more than just money, take time to consider the options.

s60I

The Family Law Act stipulates that parents that are not in agreement about their child's parenting arrangements must attend mediation, and obtain a Certificate of Attendance (Section 60I Certificate) before an Application for a parenting Order can be made to the Court.

The mediation is to be attended by both parties where the parties will attempt to come to an agreement regarding parenting arrangements.

A 60I Certificate is obtained whereby following mediation the parties have not been able to come an agreement. A 60I Certificate is also obtainable if the mediation was not attended because the matter is unsuitable for mediation.

Man Signing

Written Agreements

Agreements reached in mediation can be made in good faith (not legally enforceable) and are not legally binding. Some parties enter into parenting agreements that are flexible. However any parenting or property agreement can be formalised by way of a Consent Application which is filed with the Court, or a Binding Financial agreement endorsed by a Court. Both of these require drafting by a lawyer.