What is mediation in family law?
What is mediation in family law?
Mediation is a way for families experiencing conflict or relationship breakdown to resolve disputes.
Mediation can occur informally – with a friend or family member acting as the mediator, or formally – with an professional mediator to assist the parties.
The family law system encourages that people involved in a family law dispute attempt to come to an agreement on their own without going to court.
As such, mediation is usually the first step in a family law matter, and the court will usually require a certificate proving that the parties have attempted to resolve matters at mediation before filing in Court. In some circumstances, there are exemptions to this requirement, and the exemption will apply if any of the following apply:
- When the matter is urgent (for example, if there are concerns one of the parents is a flight risk and will be absconding with the child/children);
- Where there is family violence or child abuse;
- Where you are responding to an application made to the court;
- Where the parties are entering into consent orders;
- Where a party is unable to participate in mediation; and
- Where there have been previous court orders and one of the parties have breached the orders.
How does mediation work
In family law, mediation occurs with a family dispute resolution (FDR) practitioner who is an objective third party specially trained in mediation and negotiation. The FDR practitioner specialises in family disputes and have expertise in creating an environment where the parties will feel safe discussing their thoughts and concerns openly. The practitioner will be able to facilitate process by helping the parties to identify and narrow down the issues that are in dispute so that even if the parties cannot come to an agreement on every matter in dispute, they may be able to narrow down the issues that will be raised at court.
Mediation can occur face-to-face via a round table conference, via telephone, or via shuttle mediation.
If parties have concerns of family violence or are otherwise concerned for their safety or ability to express their thoughts freely, shuttle mediation may be appropriate. If the parties elect for shuttle mediation to occur, the mediator will speak to one party in one room and then speak to the other party in another room. Mediation will be conducted in this manner where the mediator will speak to each party separately and relay what was said to the other party and offer advice on how to move forward or resolve issues.
Everything that is said at mediation is confidential, and what is said cannot be used as evidence in court. However, FDR practitioners are required to report child abuse or anything that indicates that a child is at risk of abuse.
Benefits of mediation in family law
The presence of a third party practitioner can help the parties find different ways to move forward which may not have occurred to the parties.
The FDR practitioner’s role is focused on finding a solutions rather than assigning blame.
When answering what is mediation in family law, it is important to note that it is far more cost effective to mediate than to enter lengthy legal battles.
Most parties and their lawyers will not be able to say for sure how long a matter will remain in court, and the final cost can often be unpredictable.
Mediation is far more beneficial in terms of minimising any deleterious effect the conflict will have on the parties and their children.
Mediation can encourage the parents to focus on creating an effective co-parenting relationship.
What if mediation in family law doesn’t work?
If the parties are unable to resolve their differences at mediation, then they will have to attend court so that a judge can make the decisions.