Contrary to popular belief, it is not the intention of every family lawyer to rush their clients to court and battle in front of a Judge. A well-versed legal practitioner should have the knowledge and expertise to effectively negotiate with their counterpart. While some matters may require the adjudication and determination of a Judge most if not all matters are capable of settlement through collaborative and proactive negotiations. This is where an individual can turn to mediation.
Mediation is a confidential process in which a mediator, who acts as an impartial third party, facilitates communication between the parties to promote a mutually agreeable settlement. The purpose of mediation or alternative dispute resolution (ADR), is to give parties and/or their legal representatives a platform to negotiate their matters with the assistance of a neutral third party.
The most important concept to understand prior to attending mediation is that it is not the role of the mediator to decide the outcome of the matter rather, a mediator acts as a vessel of communication between the parties. A mediator’s primary function is to assist the parties to understand and focus on the issues that need to be resolved and provide guidance as to the resolution of those issues.
Mediation can occur for parenting and property settlement matters and there are no barriers to what can be discussed during a mediation. It is a time for both parties to communicate freely and involves give and take from both parties in order to reach a mutual agreement. Before participating in a mediation, it is essential that you seek legal advice about what the likely outcomes of a mediation are for you. Whether or not you have legal representation during mediation it is important that you have realistic expectations as to what can be achieved at mediation.
As an experienced family lawyer, there are a handful of questions that we have learned to expect from our clients. These are perfectly valid questions which require a response to understand the basics about mediation before participating. In this article, we will address some frequently asked questions which have been asked by our clients on a regular basis.
Frequently asked questions
1.Do I have to have a lawyer?
No. There is no requirement for you to have a lawyer at a mediation although, in most cases, it certainly helps. Your lawyer serves the purpose of giving you legal advice about issues discussed and proposals raised in mediation. They are not there to make the decision for you but merely to steer you in the right direction.
At a minimum it is important that you get legal advice prior to mediation, to ensure you understand the process, are aware of what your entitlements are and have realistic expectations.
2. How much does mediation cost?
The cost of mediation varies depending on who will be conducting your mediation and whether or not you are legally represented. There are a number of free mediation services such as Family Relationships Australia who offer mediation services at little to no cost. However, the waiting list for these services can be from 3 – 6 months, so you may wish to consider a private mediation.
The cost of a private mediator will vary depending on their experience and qualifications. With that said many private mediators are offering low-cost mediations to parties whether or not you are legally represented. A private mediator's fees range from a $1,000 to $5,000 on average plus outlays such as room hire.
While private mediation can be expensive, the costs of proceeding to Court far outweigh the costs of a private mediation.
3. What if the other party does not participate?
The answer to this question will depend on whether you are participating in mediation for property settlement or parenting matters.
For a property settlement mediation:
a. There is no requirement for parties to participate in mediation prior to proceeding to Court. Therefore, you may choose to make an Application to the Court without having attending mediation in the first instance.
b.Bear in mind that it is likely that a Court will Order parties to participate in mediation if they have not already done so. There is, therefore, a lot of value in attending mediation prior to proceeding to Court.
For a mediation about parenting matters:
c. Under the Family Law Act 1975, parties are required to participate in mediation prior to making an Application to the Court with only a few exceptions, being:
i. If your matter is urgent.
ii. If the Court is satisfied that there are reasonable grounds to believe that:
1. There has been child abuse and/or family violence by a party;
2. There is a risk of family violence by a party; and/or 3. There is a risk of child abuse if there were to be a delay in applying to the Court.
iii. Where a party is unable to participate effectively, for example – due to incapacity to do so or physical remoteness.
iv. If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.
d.In the event, the other party refuses to participate in mediation or you are unable to reach an agreement at mediation, then you will be issued with a certificate under section 60i of the Family Law Act 1975. This certificate is then used as evidence of your attendance at mediation prior to making an Application to the Court.
4. Is mediation confidential?
Absolutely. Anything that is said during mediation and any negotiations in this setting is completely confidential subject to the following exceptions:
a. If consent is giving by the person who made the communication and that person is over the age of 18 (if that person is under 18 years of age, then consent to disclose confidential information may be given by the adult with parental responsibility of the child or the court);
b. If the mediator reasonably believes that the disclosure is necessary to:
i. Protect a child from the risk of harm;
ii. Prevent or lessen a serious and imminent threat to life or health of a person;,
iii. Report the commission, or prevent the likely commission of an offense involving violence or threat of violence to a person or property of a person;
iv. Reporting the commission, or preventing the likely commission, of an offense involving the intentional damage to property or a threat to damage to property. For more detail regarding exceptions to confidentiality at mediation, see section 10H of the Family Law Act 1975.
5. What are the possible outcomes of mediation?
A successful mediation will depend on whether or not the parties’ have been able to reach an agreement about most, if not all the issues in dispute. If this is the case, it is prudent to ensure that a document is signed confirming the agreements reached between the parties to avoid buyer’s remorse. It is not uncommon for one or both parties to have regrets or second thoughts about agreements reached during a mediation. To avoid any doubt parties and/or their legal representatives should ensure that agreed issues are reverted to writing and signed by the parties.
I always tell my clients, that rarely do both parties leave mediation 100% happy with what they have achieved. The purpose of mediation is to give a little and take a little, and in doing so you will have conceded to issues that you did not wish to concede to for the sake of getting your matter resolved. There is a lot of value in mediation and settling a matter without the intervention of the court, not only are you a part of the decision-making process, but you are also somewhat in control of the outcome. In the hands of the Court, you are at the beck and call of the decision maker who will decide your case based on the principles contained in case law and legislation.
At Forge Legal, our team of expert family lawyers is well-known for their superior negotiation skills and ability to utilize collaborative negotiation techniques to achieve mutually beneficial settlement outcomes. We provide our clients with in-depth legal advice prior to and during mediation to ensure you are fully informed and involved in the decision-making process. For advice about mediation or any family law matter, contact our team of expert family lawyers and book a consultation.