Family Law specialists and qualified mediators see thousands of couples go through the separation process. That process can feel a little overwhelming, especially at the beginning. Parties must decide whether to use lawyers, whether to go to mediation and how to come to an agreement they can both live with.
Sometimes, there are circumstances that make mediation unsuitable. Absent those, mediation is always worth exploring. Approached in good faith, it can save parties significant time, save them money and afford them the flexibility to come up with a solution that satisfies everyone.
How mediation fits into the family law setting
Traditionally, there are two types of mediation in Family Law. There is mediation that involves financial matters only, which occurs where there are no children of the relationship under 18. If there are children under 18, the mediation can also cover parenting issues.
If there are issues relating to children, the starting point is that the parties must ordinarily attempt mediation before going to court. Before you can apply to a family law court, you must obtain a 60I certificate from an accredited family dispute resolution practitioner. This confirms that you have attempted mediation or that a party has not agreed to participate in mediation and is filed with your application.
There are some exceptions where a certificate is not required. For example, where there’s an urgent need to petition the court because one parent is about to board a plane for overseas and take the children with them. If there is an allegation of domestic violence or other abuse, or a domestic violence protection order in place, there are exceptions for parties to be excused from that process.
The role of the mediator
A mediator is an independent third party. Unlike a family lawyer, the mediator doesn’t act on behalf of either the parties.
Some couples may engage in mediation instead of instructing a lawyer. Others might consult a lawyer first. A mediation can be run with or without lawyers present, as the parties prefer. It can be a very cost conscious approach, especially where they might get on fairly well and agree on most things, and there are just a few areas where they need help ironing out a solution.
A mediator is someone neutral who can assist them to get all their issues on the white board and come up with a solution that they both own at the end of the day and that allows them to move on with their lives.
How a neutral third party can help parties come to an agreement
The key difference between a mediator and your lawyer is that, as an independent third party, the mediator is impartial and takes an objective view of the situation..
As a lawyer, you’re acting for an individual client. You are there to guide them and give them advice based on the circumstances that they share with you.
A mediator’s role is to facilitate discussion, perhaps give people a reality check if they’re putting forward a proposition that’s unlikely to succeed, and to assist to gather more information. Commonly, each party and their lawyer (if they have one) will be in a separate room. The mediator will go between the two rooms to facilitate discussions. The mediator knows what each party has shared with them, but they won’t share that with the other person unless given permission to do so. What a mediator will do, though, is identify where there’s an information gap. They might explain something that’s been missed, or encourage the parties to share more information so that they can understand the position that’s being put forward from the other person and make a decision one way or the other.
Of course, every mediator would love to resolve every single dispute that comes their way. That’s what clients come to mediation for, and there is great professional satisfaction in helping them. But mediators don’t form a view ahead of time about what that outcome should be, or try and push for one solution over another. The power rests entirely in the hands of the parties to the mediation.
One of the reasons mediators try and encourage parties to find a solution is because as family law specialists, they know what the alternative is. If you can’t resolve the dispute, then often that means you’ll need to start the court process. That’s a long road. It can be two, or as much as four, years down the track before a final decision is made by a Judge. And even then, it may or may not be something that you’re happy with. Sometimes, the children have grown up, left school or are finishing a university degree before the court case is finalised.
By giving mediation a good faith effort, you can save a lot of time and a lot of money. Contact Murdoch Mediations to find out how we can help.