Mediation is a negotiation process facilitated by a third party mediator. It is a useful and cost effective way to settle family law disputes. Negotiations and anything discussed at mediation are confidential.
Mediation Requirements Before Commencing Court Proceedings
The new Court rules now require that parties have demonstrated attempts to resolve the issues before commencing any family law court proceedings in the property. You and the other party must have taken genuine steps to resolve the dispute. This is usually in the form of mediation (with or without lawyers). A broad statement of your genuine steps taken to resolve family law issues would usually suffice. This should consider the options of alternative dispute resolution.
In relation to parenting court proceedings, parties are required to attend mediation with a qualified Family Dispute Resolution (“FDR”) practitioner. The parties will then be issued with a section 60i certificate. There are various types of section 60i certificates where parties have participated, or one party has been willing and the other party has refused despite the many attempts to engage them in mediation.
Exemptions to Mediation Requirements
In situations where the requirement for a section 60i certificate is exempt include but are not limited to the following:
Family violence, abuse and risk to safety is apparent,
In an urgent situation such as a party seeking an urgent recovery order or a contravention application
When FDR cannot proceed due to physical remoteness or incapacity of a party to attend
Any other urgent matter
When there are allegations of family violence, abuse or risk to safety, you will need to provide evidence in your affidavit that you have obtained information from a family counsellor or FDR practitioner about available services and options to you. This can be in the form of completing the Acknowledgement – Information from a Family Counsellor or Family Dispute Resolution Practitioner.
The party wishing to commence court parenting proceedings without a section 60i certificate will need to file an Affidavit – Non-Filing of Family Dispute Resolution Certificate. The Initiating Application should include an interim order seeking that the requirement for FDR is exempt.
Reasons to Consider Mediation
Attending mediation can significantly narrow the number of disputed issues and parties can focus on those outstanding issues going forward and continue negotiations. This can be a cost effective way of resolving the number of issues in a family law dispute. Parties can come up with different and creative ways in resolving their disputes.
Mediation also allows the parties to take away the uncertainty of a judgment at the final hearing and how a Judge will view the case. Lawyers and barristers can make an educated guess based on experience but there is no guarantee. Reaching an agreement at mediation takes away the risk of litigation and empowers the parties to control the outcome. This is especially important in parenting cases where parents should be able to make important decisions for their children. Judges have always encouraged parents to make those decisions if they are able to reach an agreement. If the parties are unable to agree, then they will have no other choice but to leave the decision making to the Judge who is a person who does not know the children, nor have a relationship with the children and can only rely on the evidence in court to make a decision.
The confidential nature of mediation allows parties to be upfront and frank with their discussions without fear of it being used against them in Court. If an agreement is not reached after the mediation session, the parties should instruct their lawyers to forward a formal written offer of settlement to the other party with their last proposed offer at mediation. This will give parties time to consider the other party's final position at mediation as a genuine offer of settlement.
Even if the parties have commenced court proceedings, the Court will encourage and direct the parties to attend further mediation or other types of alternative dispute resolution to see whether the parties can reach some form of agreement. In property matters, most matters are directed to mediation or a Conciliation Conference which is essentially mediation conducted by a Registrar of the Family Court of Australia.
Mediation Tips
Mediations can be a long, emotional and stressful day as many people feel the pressure to move from their positions. Often, people react negatively when the other side puts forward an initial offer to commence the negotiations. The mediator, the other side and even your lawyer may challenge a person's reasons for not moving from their position in the negotiations. It is easy to become offended, defensive and reactive when offers are being put forward.
During mediation you should:
Keep an open mind
Focus on the purpose of mediation being a cost effective and timely way to resolve the dispute
Be prepared to move from your position
Make compromises
Before mediation, be clear in telling your lawyer what your bottom line is
Expect the other side to put forward offers to cause you to react in a negative way
Practice tools to regulate your emotions
If you need a short break, let your lawyer and mediator know that you need to step out for some fresh air to clear your thoughts for 10 minutes or so
If you are negotiating property matters, bring a calculator and a balance sheet with you
If you are negotiating parenting matters, ensure that you have the children's calendar so that use it to work out dates and times of changeover
Many people are encouraged to settle the dispute when they calculate the legal fees to fight it out in court can be more than the gap between the parties' positions. For instance, consider the following scenario:
Party A's offer to Party B: Party A will pay $10,000 to Party B
Party B's offer to Party A: Party A will pay $50,000 to Party B
The gap between the parties' positions is $40,000
Party A and Party B's legal fees each to reach a final hearing is $40,000 each, so $80,000 in total. Therefore the parties collectively will expect the pool of assets to be depleted by $80,000 in total if they do not reach an agreement and have to resolve the dispute at a final hearing. The anticipate legal fees of $80,000 is more than the gap between the parties' position of $40,000
If Party A wins at the final hearing and pays $10,000 to Party B, Party A would have had to incur $40,000 in legal fees. Party A may argue that they would rather pay their lawyers the $40,000 instead of compromising at mediation and paying the additional $40,000 to Party B. However Party A would have to endure the years of stress caused by litigation and take the risk of an unfavourable judgment at the final hearing.
If the parties choose to meet in the middle and agree on Party A paying $30,000 to Party B, the matter is resolved on a final basis without the stressful years of litigation and eliminates any risks of an uncertain outcome at court.
What Happens After Mediation?
Upon reaching an agreement at mediation, most people walk away feeling relieved that the dispute has now concluded and everyone can move on with their lives.
Some parties can reach an agreement on all issues at mediation and then retain lawyers to prepare the agreement in the form of Application for Consent Orders and Consent Orders.
Many people reach an agreement about the parenting arrangement during the court required section 60i mediation. The mediator assists the parties to capture those agreed points through a document called a parenting agreement. However the parties should be aware that a parenting agreement is not binding. Therefore a party will not be able to enforce the agreement in court (as a contravention of a court order). The language used in a parenting agreement can be quite broad and open for interpretation which can cause further dispute and confusion between the parties. However the informal and flexible nature of parenting agreements means that other points of agreement can be included which normally cannot be made into court orders.
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The information is provided on a general basis only. We strongly recommend that you seek your own independent advice from a lawyer about your situation.
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