When relationships break down, it is inevitable that there will be things that need to be sorted out. Some couples can negotiate to reach an agreed outcome on matters relating to their separation without too much difficulty. For others, it is more problematic. Many of these couples may sensibly choose to engage a lawyer to negotiate an outcome on their behalf. If things are really bad, the parties might end up in the family law court system.
Just because a couple decide to “lawyer up”, this doesn’t mean that they are destined for the court room and years of angst and costly litigation. One alternative option that is increasing in popularity because of its speedy and cost-effective outcomes is private family law mediation.
What is private family law mediation?
Private family law mediation is a form of dispute resolution that aims to resolve family law related disputes between parties outside the court system. Parties can mediate on all matters relating to their separation (e.g. arrangements for the care of children and the division of finances) or in relation to specific, discreet issues that the parties might not be able to agree on, such as which school a child will attend.
An independent mediator is chosen by the parties to facilitate the mediation. They are expertly trained and qualified as a mediator. They are usually a barrister or solicitor who also specialises in family law. The mediator is neutral and does not take sides. They do not offer advice to either party.
The mediator is tasked with facilitating conversation and ideas by the parties. The parties are often represented by their lawyers at the mediation, but they do not have to be. A mediation can take place before there are any court proceedings but can also take place while court proceedings are underway. Mediations can take place in person or via video conference. While it is preferable for the parties to mediate in the same room together, “shuttle” mediations can also be arranged. These avoid the parties coming into direct contact with one another and the mediator and lawyers work across 2-3 rooms. A “shuttle” mediation is sensible in situations where there has been a history of family violence and where is not sensible for the parties to be in the same room together.
Mediations are confidential, except in specific circumstances. They are also deemed to be “without prejudice”. That means that things said, ideas suggested, proposals made, and concessions given at mediation, cannot be used against parties later on if the matter does not settle and the dispute ends up in court. This allows parties to openly explore options and ideas without fear of repercussions.
The success rate of mediations is usually very good. If the parties agree on a settlement, the terms of the settlement are usually written up in summarised form by the mediator and parties. These are known as “Heads of Agreement”. The parties then arrange for their lawyers to formalise an agreement by way of a consent order or financial agreement.
What are the benefits of private family law mediation?
Some of the main benefits of mediation is that is much cheaper and quicker than going through the court process which could take years to resolve. Also, both parties can negotiate and agree on an outcome, rather than being subjected to an outcome that someone else (i.e. a Judge) is making for them. With most family law court applications taking over a year or longer to get to a final hearing, many parties are choosing private family law mediation as a quicker, easier and cheaper way to resolve their dispute.
David Harper, Head of the Dobson Mitchell Allport Family & Relationships Law team is an Australian Institute of Family Law Mediators & Arbitrators (AIFLAM) Nationally Accredited Mediator and regularly chairs family law mediations. David is also the Tasmanian Representative on the AIFLAM National Board. If you are interested in mediation as an alternative to resolve your family law dispute, please contact David for further information and bookings.
