Since the introduction of the Federal Circuit and Family Court of Australia (which replaced the previous Family Court system in 2021) there has been a greater focus on trying to resolve a dispute through mediation before approaching the Court and also once parties are participating in the Court system.

It is now a requirement that parties attempt to engage in a dispute resolution process such as mediation with respect to both property and parenting before making any application to the Court, unless they fall within the limited exceptions that apply.

The mediation process involves structured negotiation in which an independent person – the mediator – assists the conflicting parties to identify and assess options to resolve their property or parenting dispute.

It is important to know that mediation is not adversarial in nature.  In other words, mediation does not seek to identify who is ‘wrong’ or ‘right’ in a matter, rather, it is a problem-solving exercise seeking to reach an agreement that mutually benefits both parties in a dispute and any children that may be involved.

What Happens at Mediation

Mediation will usually commence with an explanation of what the process entails, followed by an open discussion about the background of the matter and the issues in dispute. The mediation process is otherwise flexible and can be tailored by the mediator to the individual nature of each party and their particular circumstances.

The mediator’s role  includes:

  • Asking questions;
  • Encouraging open discussion;
  • Offering different perspectives;
  • Expressing issues in alternative ways;
  • Facilitating negotiations by conveying offers between the parties;
  • Identifying potential solutions to areas of disagreement.

Commonly, the mediator will meet with the parties jointly and separately.  Parties can attend mediation alone or legally assisted (that is, with their lawyer present to support them).

A Lawyer’s Role in Family Law Mediation

Having a lawyer experienced in family law matters assist you through the mediation processes can be significantly beneficial.  Specifically your lawyer will help

you in the following ways:

  • Advise you on how a mediation works and what to expect in the mediation sessions;
  • Advise you on the range of your entitlements and the likely outcomes should your dispute progress to Court, so you can negotiate from an informed position;
  • Advise you of the strengths and weaknesses of your case and how to remedy those weaknesses;
  • Advise you of settlement options to consider;
  • Offer practical and legal solutions to your dispute;
  • Explain the legal terms and frameworks being used in the process;
  • Drafting documents to formalise any agreements reached with respect to property or parenting issues;
  • Communicating with the mediator and other parties where there is a power imbalance, or where you feel unable to do so.

Benefits of Mediation

Mediation as a form of dispute resolution has a range of benefits in general, making it an appealing alternative to the Court system.  Mediation is:

  • Cost effective;
  • Time efficient: a dispute can be resolved much more quickly through mediation than through the ordinary Court process;
  • Confidential;
  • Flexible: parties to a dispute have more control over the outcome as the process can be customised to your needs; and
  • Less stressful: mediation is less formal and less intimidating than attending Court.

Mediation also helps to preserve relationships.  Mediation seeks to foster open communication and collaboration between the parties to a dispute, helping to reduce conflict and promote amicable resolutions. This is particularly important in family law disputes.

If you or someone you know are in need of family law advice, you can contact our team of family law experts on 9525 8688.