Family Law Mediation and how to prepare
Dispute resolution is an inherent part of most family separation proceedings. This is particularly the case after the court merger giving rise to the Federal Circuit and Family Court of Australia on 1 September 2021. We tell you what family law mediation is and how to prepare.
What is Mediation?
It is a process where parties to a dispute try to reach an agreement facilitated by an independent mediator. It is not a place where someone declares one party to be right or wrong, nor where someone will feel entirely satisfied with the outcome as if they have “won”. Instead, it is where everyone is encouraged to find a middle ground that they can live within the interests of reaching a resolution and moving past the dispute process in their lives.
Sometimes, of course, that is harder than it sounds.
The Mediator and Their Role
Generally, a mediator is an experienced person in family law who is there to help the parties reach a resolution. They tend to be barristers, solicitors, trained dispute resolution specialists, or even in some cases, retired judges.
Their role is to help each party see the risks associated with future litigation and to encourage an acceptable and reasonable compromise of each party’s position.
Do I have to go to Mediation?
Yes. There are rare exceptions where parties will not be made to mediate, but as we mention here generally assume that you will have to participate in mediation at some point.
The Mediation Process
The day will start with a meeting with your family lawyer and barrister (if briefed) beforehand. There, you will talk about expectations, strategy, and outcomes.
More likely than not the mediator will open with a speech. There they will tell you that a good outcome is where both parties make similar compromises in their positions. From there, an opening session will take place. Each party or their lawyers will put forward their positions, facts, concerns, and desired outcomes. How long that takes will depend on the day.
After that you will probably break up into separate rooms. The mediator will take information, thoughts, facts and offers between the parties for the next few hours. Often little gains are made early in the day, with more progression towards an agreement increasing towards the end of the day. Over time, the mediator speaks with the parties, carries information and offers back and forth, presents offers and ground is (sometimes slowly) made towards a resolution.
Of course, you are under no obligation to move from your position, make an offer or accept one. You are, however, expected to participate reasonably and to attempt to reach a reasonable resolution of the matters in question. That’s why it’s important to be at any mediation with good preparation.
How can I best prepare for Mediation?
There are really three main areas of preparation for mediation. They each take place in conjunction with your family lawyer:
- Understanding the issues. Sometimes it seems like everything is an issue, but usually when you dig down a bit there are a few major sticking points for both participants. Trying to understand what these are and why they are contentious is a good place to start. In many mediations the parties will put in “position papers” which will often help you know more about where your ex (or their lawyer) is likely to focus their attention.
- It’s helpful to discuss the likely process of the day with your lawyer. Knowing who the mediator is, the likely order of events, how things will play out on the day can be useful. Ask any questions you might have about the process so that you’re not surprised or disappointed on the day.
- Finally, have a frank conversation with your lawyer about expectations. Mediation, by its nature, is going to be trying to move both you and your ex to a position of compromise. That means if you’re going in believing that your lawyer will convince the other party (and their lawyer) to give you everything you want, then you’re probably going to be disappointed with the outcome.
Make sure your lawyer knows what your negotiating points are. As well, though, make sure you talk with your lawyer about what their strategic approach will be on the day. Will they be precise and clinical, friendly, and disarming, or aggressive? Each advocacy style might have a place in different circumstances.
What happens if we reach an agreement at Mediation?
If you reach an agreement at mediation, it will be documented on the spot. This can often be at the end of a long session, and it’s tempting to leave the paperwork to the next day. Don’t succumb to that temptation (and usually a mediator won’t let you anyway). Get the paperwork signed and let your lawyer have the time to read it properly and point out any risks.
What if we can’t resolve matters at Mediation?
If you have participated genuinely in the mediation but are unable to reach a resolution, then your separation process will continue towards a Court hearing. You will have to follow whatever directions have been made by the Court along the way. Sometimes a matter that didn’t resolve at mediation will resolve in the following days as parties come to grips with the likely costs and process going forward.
While there are many self-represented litigants in the family law system, having an advocate to help you during the mediation process is extremely valuable. They can offer you independent counsel, assess your real risks of not settling and give you help at each step of the way.