Do I have to attend Mediation?

Mediation is a practical way to help parties in family law matters reach an agreement amicably, efficiently and without the need for court intervention. Here is an overview of the mediation process in family law:

1. Initial Assessment

Before mediation begins, an initial assessment is conducted to determine whether mediation is appropriate for the parties involved. This assessment is usually carried out by a Family Dispute Resolution Practitioner or mediator. The mediator will consider factors such as the presence of family violence, safety, power imbalances, and the willingness of both parties to participate.

2. Preparation

Once mediation is deemed appropriate, both parties will prepare for the mediation sessions. This may involve gathering relevant documents, identifying key issues, and considering possible solutions. Legal advice may also be sought during this stage.

3. Mediation Sessions

Mediation sessions are facilitated by the mediator and can take place in person, over the phone, or via video conferencing. The sessions typically follow these steps:

• Introduction: The mediator explains the mediation process and how it will run, sets ground rules, and ensures that both parties understand the nature of the process.
• Issue Identification: Each party has the opportunity to present their issues and concerns. You will also be able to talk to the mediator alone. The mediator cannot tell your ex-partner what you have said unless you agree. The mediator helps to clarify and summarise these issues.
• Discussion and Negotiation: The parties discuss the issues and negotiate possible solutions. The mediator facilitates the discussion, helps manage emotions, and ensures that both parties have an equal opportunity to speak.
• Agreement: If an agreement is reached, the mediator will help the parties draft a written agreement. This agreement can be made legally binding by filing it with the court as consent orders.

4. Confidentiality

Anything you say during mediation is confidential. This means it cannot be used as evidence against you in Court and it cannot be shared with anyone. However, there are some exceptions where:

(a) A child is being abused or is at risk of child abuse;
(b) There is a serios and imminent threat to the life or health of a person;
(c) The mediator is assisting an independent children’s lawyer to properly represent a child’s interests; or
(d) You give your consent to the information being disclosed.

5. Post-Mediation

After mediation, the parties may need to take additional steps to finalise their agreement. This could include:

• Legal Advice: Parties are encouraged to seek legal advice to ensure that the agreement is fair and in their best interests.
• Consent Orders: If the agreement involves parenting arrangements or property settlements, the parties can apply to the court for consent orders to make the agreement legally binding.
• Further Mediation: If some issues remain unresolved, further mediation sessions may be scheduled.

6. Court Involvement

If mediation is unsuccessful and the parties cannot reach an agreement, they may need to proceed to court. However, attending mediation is generally a prerequisite before applying to the court for parenting orders, unless an exemption applies (e.g., in cases of family violence or urgency).

There are a number of benefits to Mediation:

• Cost-Effective: Mediation is generally less expensive than going to court.
• Time-Saving: Mediation can resolve disputes more quickly than the court process.
• Confidential: Mediation sessions are private and confidential, unlike court proceedings.
• Control: Parties have more control over the outcome, as they work together to reach an agreement.
• Less Adversarial: Mediation promotes cooperation and communication, which can be beneficial for ongoing relationships, especially when children are involved.

If you have a mediation coming up or would like to know more about the mediation process, reach out to Solari and Stock Lawyers in Miranda on 8525 2700, or click here to request an appointment with one of our experienced Family Law Team, of Riccarda Stock, Nicole Quirk, Shweta Kumar, Nikita Ward or Kirstin Attard at Solari & Stock today.

Article by Shweta Kumar
Image created in Canva