Family Law Mediation

Separation and divorce can involve difficult emotional and practical decisions, particularly when children, property, finances and ongoing parenting responsibilities are involved.

Family Law Mediation provides a structured process in which both parties can work through these issues with the assistance of an independent mediator rather than leaving every disagreement to be resolved through litigation.

Mediation is not relationship counselling and its purpose is not to persuade a couple to stay together.

When a relationship has ended, the focus changes. The questions become practical ones: What needs to be decided? Where do the parties disagree? What arrangements will work after separation? And, where children are involved, what decisions are in their best interests?

What Is Family Law Mediation?

Mediation is a form of Alternative Dispute Resolution (ADR).

The mediator does not act as a judge, decide who is right or impose a settlement. The mediator manages the process, helps identify the issues that need to be resolved and assists both parties to explore possible ways of resolving them.

The decisions remain with the parties.

This is one of the significant differences between mediation and litigation. In court, the final decision may ultimately be made by somebody else. In mediation, the parties retain much more responsibility for the outcome.

Mediation is voluntary. In High Court proceedings, Rule 41A requires parties to indicate whether they agree to or oppose referral of the dispute to mediation, but it does not require parties to reach an agreement or make mediation compulsory.

You Do Not Have to Agree Before Mediation Starts

One of the misconceptions about mediation is that the parties must already be getting along or largely agree with each other before they can mediate.

If that were the case, there would often be very little to mediate.

The parties can have very different views about finances, parenting, maintenance or what a fair settlement looks like.

What is needed is enough willingness from both people to participate in the process, listen to the issues and consider possible solutions.

The mediator’s job is not to eliminate disagreement. It is to make the disagreement manageable enough that proper negotiation can take place.

What Can Be Addressed Through Family Law Mediation?

Depending on the circumstances, mediation may deal with several aspects of separation, divorce and post-separation family life.

These can include:

Divorce Settlement Agreements
The financial and practical terms that need to be agreed when a marriage ends, including assets, liabilities and, where relevant, spousal maintenance.

Parenting Plans
Arrangements relating to children’s care, residence, contact, schooling, decision-making, holidays, communication and the other practical aspects of parenting across two households.

Maintenance Plans
Financial arrangements relating to the needs of children and, where applicable, spousal maintenance.

Section 22 Parental Responsibilities and Rights Agreements
Agreements dealing with parental responsibilities and rights in circumstances where section 22 of the Children’s Act applies.

These areas often overlap. A parenting arrangement may have financial consequences, and decisions about where children live may affect maintenance, schooling, transport and everyday family life.

Mediation allows these issues to be considered together rather than treating every disagreement as an isolated problem.

Mediation and Children

Separation ends the couple relationship, but where parents have children together, it does not end the parenting relationship.

Parents may continue making decisions about their children for many years after their separation.

Conflict between parents can therefore have consequences long after the divorce itself has been finalised.

Part of the mediation process is helping parents separate the issues between them as former partners from the responsibilities they continue to share as parents.

The purpose is not to pretend that the separation is painless or that parents will always agree.

It is to develop arrangements that are workable and that keep the children’s needs and best interests central to the decisions being made.

Mediation Can Reduce the Cost of Conflict

Litigation has an important role when a court needs to decide a dispute, when urgent protection is required or when agreement is simply not possible.

Not every disagreement, however, needs to become a contested legal battle.

The Department of Justice describes mediation as a process intended to help parties identify issues, explore areas of compromise and generate possible solutions, and identifies speed, cost and flexibility among its advantages.

The financial cost matters, but so does the emotional cost of prolonged conflict.

This becomes particularly important when the people involved will still need to communicate with one another after the legal process has ended because they share children.

Reaching Agreement

A mediator does not force an agreement.

Sometimes the parties reach agreement on everything. Sometimes they resolve only some of the issues. Sometimes mediation makes it clearer that a particular matter will need to be dealt with through attorneys or the court.

Even resolving part of a dispute can be useful because it reduces the number of issues that remain contested.

Where terms are agreed, they can be recorded and then dealt with through the appropriate legal process where formalisation or a court order is required. The Department of Justice similarly recognises that mediated agreements can subsequently be made orders of court where appropriate.

When Mediation May Not Be Appropriate

Mediation is not appropriate simply because two people are separating or disagreeing.

Where there is domestic violence, coercive control, intimidation, serious power imbalance or a concern about the safety of an adult or child, the suitability of mediation needs to be considered very carefully.

There are circumstances in which legal advice, protection proceedings or intervention by the court is more appropriate than trying to negotiate directly between the parties.

The safety and ability of both people to participate freely in the process matter.

My Role as Mediator

My role is to remain independent of both parties and manage a fair process.

That means listening to each person’s concerns, helping clarify the issues, testing assumptions, identifying where there may be room for agreement and helping the parties have conversations that may have become extremely difficult outside the mediation room.

I do not make the decisions for the parties.

I also do not approach mediation on the assumption that somebody must win and somebody must lose.

A workable agreement usually requires both people to understand not only what they want, but what is realistic, what the other person needs and what the consequences of different options may be.