Separation poses a series of difficulties for parties faced with the breakdown of a marriage or de facto relationship, and even more so where children are involved. Often disagreements can lead to either or both parties becoming entrenched in their own position, and litigation can swiftly follow. Before delving into the Court system, parties who have separated should consider how Mediation may transform a lengthy and confronting process into a far swifter and more peaceful resolution of their dispute. Some key reasons to consider mediation are:
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The parties are in control
Each party will get out of Mediation what they are prepared to put in. If one party is completely unwavering in their position, then an outcome may not be able to be reached. However, where both parties take a realistic approach to negotiating a settlement, they can reach an outcome that they own.
The alternative to coming to an agreement is to wait some time (often a very long time) for a Judge to make a decision. There a very serious and real risks in simply placing a situation before a Judge and saying ‘you sort it out’. In carrying out their role the Judge will simply make the necessary findings, and then impose a decision as per the law.
A Judge is not bound or obligated to accept the entirety of one party’s proposal, to the exclusion of the other, and they are free to ‘craft’ their own solution to the situation. A solution which is ‘crafted’ by the Judge may suit one party, both parties, or neither party. The Judge does not need to concern themselves with whether their decision is convenient for one party or the other. They will reach their decision by applying the law, which can sometimes be something of a blunt instrument, but that is their role. If a Judge has been asked to make a decision, they will do that. Whether it is a decision that the parties are happy with is an entirely different issue.
Additionally, the Judge’s decision will not necessarily take into account the subtleties or sensitive issues which may be important to one, or both, parties but which have no relevance under the law. By maintaining control over the process via mediation those important, but sometimes subtle, factors can be taken into account and handled more sensitively.
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Mediation costs less than Court
The ability to negotiate an amicable resolution of parenting and/or property matters following separation results in far less legal costs accruing, which ultimately reduces strain on both parties and an already severed relationship. It is important to consider the financial and emotional costs of going to Court before discounting the prospects of Mediation.
To commence Family Law proceedings in Queensland one party must file an Initiating Application and Affidavit supporting that Application and the other party must then respond. If the dispute involves a potential property settlement or financial claim, both parties will also need to file a Financial Statement setting out their financial position. This can prove to be a costly exercise for both parties before they even go to Court for the first time. As a matter progresses through the Court system, parties will often need to fund costs of solicitors and barristers, as well as any expert witnesses that might be required (such as an registered valuer or a family report writer).
It is important for separating persons to also consider the emotional costs of going to Court. For instance, the Court process will often involve enquiries into the financial circumstances and spending habits, mental health and current personal life of either or both parties. For children, the Court process can be daunting and unsettling, and may result in significant changes in a child’s behaviour.
Mediation is an opportunity for parties to examine their financial circumstances, contributions and future needs, and/or what the most suitable care arrangements are for children in a particular family under the guidance of an experienced Mediator. This can avoid the need for hostility between parties, often created by a significant property or parenting dispute.
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An agreement can be documented immediately
Parties hold the power to make the process move at the pace they choose. Often documents can be prepared and settled at the first Mediation, or a further Mediation can be convened to do so.
If parties feel uncomfortable settling documents on the day of Mediation, an agreement to re-convene or to sign the documents at a later date can also be achieved.
It can presently take anywhere from 18 months to 2.5 years from the date of filing Court proceedings to get to a final hearing before a Judge. The Judge’s decision is usually not provided on the day of the hearing and parties can then wait some months, and occasionally over a year, for the decision to be released from the Court.
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There is less impact on the parties
Reducing the time and cost of achieving and documenting an Agreement can assist parties to have a less acrimonious separation. For those parties who choose (or are forced) to go to Court, the battle lines are often drawn irretrievably, and the longer the Court process takes the higher the cost, and the more each party needs to achieve to recoup their losses. These pressures are often very stressful on both parties and de-rail the ability for the parties to ever enjoy a peaceful and amicable relationship in the future, which is particularly important for separating parents.
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There is less impact on the children
Parents can often inadvertently project their own anxieties onto children. For instance, where parties are in the heat of battle in the Family Law Courts, children are often exposed to a parents’ financial and emotional stresses, whether intentional or not.
Children are often the subject of a dispute, and can interpret disagreement between the parents as being the child’s “fault”. The common consequence is then for a child to be riddled with guilt, albeit without any basis.
By resolving a dispute quickly and amicably through Mediation, children can be spared the emotional and financial toll of parents’ litigating a dispute.
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Parties have the benefit of legal advice
Mediation is generally undertaken by an experienced Family Law practitioner. While the Mediator cannot make a decision for the parties, they can often assist in encouraging each party to consider particular aspects of an argument, and can “reality check” expectations of parties to a Mediation. For instance, a Mediator will often accurately detail the potential wait times in the current Court system, which is a worthy consideration for separating parents as the dispute can easily continue for many years to come.
Parties may choose to mediate with or without a legal representative. Where lawyers are present, each party will spend some time alone with their lawyer to discuss the legal position or ramifications of a particular offer.
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Expectations (and emotions) can be managed
Sometimes disputes arise after separation which involve one or more of the parties having unreasonable or unfounded expectations. Mediation is often a good opportunity for each party to be realistic about possible outcomes, as both parties can put their best offer forward.
Both parties have the opportunity to receive not only their own legal advice, but the input of the experienced Mediator who can confidentially highlight possible risks or shortfalls in a particular position, which may make the decision to accept or make an offer much easier.
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The Mediation process is confidential
Each Mediation Agreement will detail that the Mediation occurs on a strictly confidential basis, with some limited exceptions. This means that neither party can disclose to any other person the details of the Mediation or include information discussed at mediation in an Affidavit in Court proceedings.
This confidentiality extends to lawyers and Mediators, which enables separating parties to frankly discuss their history or concerns without fear of later retribution.
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Mediation is fact based, not accusation based
The Mediator’s role is not to make a decision for the parties, so they have no need to make any finding of fact or decide whose version of events is more palatable. The outcome that follows is that less accusations are made and the Mediator will assist the parties to focus on the relevant legal principles to be considered.
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Court can still be an option
While the desired outcome of Mediation is for parties to resolve their dispute, where this is not possible either party can still choose to progress the matter to Court.
Given the burdens currently faced by the Family Law Courts, most parties will be required to genuinely attempt Mediation before being allocated a trial date, unless there are circumstances in a particular matter which render it inappropriate for Mediation (such as serious urgency or instances of risk or Family Violence). It is therefore usually a good idea for parties to consider Mediation before commencing Court proceedings, as a successful Mediation can dispense with the need for Court intervention entirely.
If you or your client are considering Mediation please do not hesitate to contact Murdoch Mediations on 1300 068 736 for more information on how we can assist.