With 10 years a s the Registrar at the Family Court helping people solve family law disputes, Debra Parker is a household name when it comes to family law mediation. Debra's excellence and achievements as a mediator in private practice have earned her several accolades, including a Lawyer's Weekly Award.
Debra's top tips for mediation will help you understand the process and boost your chances of reaching an agreement. Here's 10 things you need to know about family law mediation:
Mediation isn’t as scary as it sounds
Family law mediation is a process to help with making decisions after a relationship transition, such as separation or divorce, without going to Court. You could think of it as 'assisted negotiation.'
A family law mediator guides you and the other party through issues and key decisions. They a neutral and help broker agreement by focusing on your objectives and interests. The Australian Institute of Family Law Arbitrators Mediators has a neat definition you can read here.
You can attend family law mediation with or without lawyers. Government funded organisations such as Relationships Australia offer mediation, or you can opt for a Nationally Accredited Mediator.
You can mediate at any time during your family law matter
There is no ‘right’ time to attend family law mediation.
You can mediate at any point in your family law matter. Sometimes you might focus on specific issues and defer others to a later mediation session.
After a separation, it is often preferable to attend family law mediation as early as you can, and when you feel ready to do so. Family change is a difficult and stressful time. Family law mediation can help avoid conflict escalating and ease some of the uncertainty that follows a relationship breakdown. This can help maintain amicable relations with the other party.
Family law mediation typically significantly less expensive than Court based processes, even when lawyers are involved.
You can return to family law mediation at any time after your separation, as issues arise. If your communication with the other party is difficult, family law mediation can help by facilitating a productive discussion and ‘reality test’ everyone's perspectives. A skilled mediator can often help move things forward if you’re stuck in a stalemate.
3. Mediation is ‘choose your own adventure’
Not only is it efficient and cost effective, parties who mediate have more control over the process and the outcome.
You can determine the dates for mediation, decide on the location, the mediator and the delivery mode. Cut through the red tape and long delays of Court proceedings. Many mediation services offer virtual sessions, conducted via phone or video link, making the process accessible to all.
You don’t have to face the other party during mediation
You don’t have to face the other party during family law mediation. If you feel uneasy about being in the same room, a shuttle mediation can be arranged. Shuttle mediations have the parties in different rooms in the one location, and the mediator moves between them to facilitate the discussion.
Most mediators will conduct a screening assessment to determine whether the matter is appropriate for mediation or if there are safety or family violence concerns. You should let the mediator, or your lawyer know, if you are concerned about your personal safety or ability to participate at mediation.
Preparation is key
First step in arranging a mediation is to have the other party’s agreement to attend a mediation. Either the mediation provider can take care of this for you, or your lawyer can arrange it. Both parties need to be present and come ready to mediation to have a productive discussion and make compromises.
Together you will select your mediator and the date for mediation. If you’re not sure about what service provider to use, we can talk you through the options and make a recommendation. We will take into account the number and type of issues that need solving and the personalities of the parties.
You will likely be asked by the mediator to prepare certain documents for the mediation, to explain how you see the issues and your suggested solutions for them. You can have a lawyer help you draw up your mediation papers and proposals so you go into the session fully prepared.
If you’re electing to attend without a lawyer, we can meet with you for a pre-mediation preparation session to help plan your strategy, to identify the information you'll need to gather before your session and advise you about possible proposals you could make (or that the other party might make to you). We can also give you information about your options to legally record any agreement you may reach at mediation.
You don’t have to have a lawyer – but it is helpful if you do
You don’t have to have a lawyer attend with you at mediation.
The benefit of having an experienced family lawyer present with you during the mediation is that they can explain to you in ‘real time’ how the family laws of Australia apply to the proposals you make, or the other party makes to you. This can assist you in making decisions during negotiations, and help avoid decision regret afterwards.
A lawyer can also explain how proposals affect your rights and entitlements, and how any agreements that are reached can be formalised and enforced after the mediation.
It doesn’t have to be a drawn out or painful process
The length of a mediation varies, depending on the nature of the dispute and the level of agreement between you the other party. Typically, a minimum of 3 hours is required but often a full day is taken.
You can still get advice after you’ve attended mediation about the outcome you reached
You can leave mediation with a written record of what was agreed and what was not. This is usually not legally enforceable unless lawyers were present with you on the day to legally document the agreement then and there.
If you’re completely comfortable with what has been agreed, then after your family law mediation you can seek a lawyer’s assistance to turn your mediation agreement into a separation agreement, parenting plan, consent orders or a Binding Financial Agreement after the mediation.
You still have other options even if agreement isn’t reached
Sometimes a matter cannot be resolved at mediation, despite everyone’s best efforts on the day. At this point you should seek legal advice about your options – which may include a further mediation, lawyer-assisted dispute resolution processes or a Court application.
You can also attend mediation if you are already in Court
Many people attend family law mediation once the Court process has already begun. In fact, the Court encourages it. Your discussions at mediation are kept confidential from the Court, meaning you can have open discussions to explore solutions, without fear of damaging your Court case.
If you resolve your matter at mediation whilst you are also involved in Court proceedings, you can ask the Court to make Orders reflecting what was agreed at mediation. This is a good way to reduce the number of issues in dispute, or resolve Court proceedings altogether.
You can book a mediation with Debra here.
All of our lawyers are experts in helping clients prepare for and secure good outcomes at mediation. If you’d like to meet with one of our lawyers to help you prepare for mediation, or discuss your representation at mediation, you can do so here.