As of 2021, all parties to a family law dispute, are required to attend a form of Family Dispute Resolution (FDR) in an effort to resolve their dispute. There are various forms of FDR, although the one that is most likely to affect the majority of families, is Mediation. In this article, we will discuss what to expect at Mediation and how to prepare for your Mediation.

What is Mediation?

Mediation is a dispute resolution process where an independent person (the Mediator) assists two or more parties in family law situations (usually parents or former spouses) who are in a dispute about parenting, property, child support or maintenance to come to a mutual agreement that resolves their dispute.

Sometimes Mediation can include both parties assisted by their lawyers with the Mediator, and other times mediation can include just the parties with the Mediator, if neither of them are legally represented or if they choose to attend without their lawyers present.

The Mediator’s job is to facilitate discussions, in a neutral and safe manner. During these discussions, the Mediator will listen to the issues that are in dispute, consider each parties concerns, and their proposed plans for settlement, and then help the parties to identify as well as explore possible avenues for settlement and set out terms that will resolve the dispute.

Sometimes Mediations can result in the final resolution of a dispute. In other instances, Mediations can help to resolve some of the issues in dispute, and the parties can then choose to continue their matter in Court or Arbitration to resolve the remaining issues.

There are two key elements to mediation:

1. Neutrality – meaning the mediator is an independent, objective person; and 

2. Confidentiality – this is important, especially where parties do not want their information being shared, or where the matter is currently in Court or likely to be in Court. This is because during negotiations the parties will be able to make concessions or compromises about certain issues, that they might not have otherwise made, and have frank and honest discussions without fear that this will be brought to the Court’s attention and compromise their case.

How to prepare for Mediation

Prior to mediation, you should ensure that you have:

  1. Identified the main issues in your matter, especially those that you consider important to resolve during the mediation process.

  2. Thought about what your former partner or spouse’s main issues might be, and what outcomes they might be seeking to address those issues.

  3.  Considered a variety of possible outcomes that you would be happy with, as this can help facilitate negotiations.

  4. Obtained legal advice and are aware of:
    • How your matter or dispute will progress if it does not get resolved at mediation.
    • The possible outcomes that you will achieve if your matter proceeds to Court or Arbitration – this includes best case and worst-case outcomes.

If it’s a parenting dispute 

For parenting disputes, where you are hoping to reach an agreement about parenting arrangements during mediation, you could start by considering:

  1. Where the children will live.

  2. The special occasions that are important to you and the child, including school holidays.

  3. How the children will come and go from your place to their other parent, or to and from school or their other activities (including transport options).

  4. Who is going to make decisions about things such as the children’s schooling and health, as well as extracurricular activities. This might also include who will have access to information relating to these issues for the children.

  5. The costs associated with the children and how these costs are to be managed.

If it’s a property dispute

For property disputes, where you wish to separate your finances from your former spouse, including obtaining or retaining assets, liabilities and superannuation during the Mediation process, it would assist to:

  1. Have a list of all the assets, liabilities, superannuation and financial resources (the pool) of you and your partner.

  2. Bring with you valuations, appraisals, or other financial documents showing the value of the assets, liabilities, superannuation and financial resources contained in your list.

  3. Bring with you documents that demonstrate your financial position and that of your former spouse.

  4. Have obtained financial advice relating to your borrowing capacity, if you intend to retain a property with a mortgage or otherwise if you wish to pay a cash lump sum to your former spouse.

  5. Have obtained Tax Advice, particularly if there are Trusts, Business, Partnerships or Companies included in your asset pool.

  6. Consider what items from the pool you want to be keeping.

  7. Consider any contributions you made to the relationship.

  8. Think about your current financial situation as well as your financial situation in the future – including things such as income, earning capacity, health conditions or concerns, whether you have someone else that supports you financially or a new partner. If there is also a parenting element to your dispute, consider how the parenting arrangements will impact your financial situation.

What to expect when you attend Mediation

It is usually best to have legal representatives (a family lawyer) present with you when you attend mediation, as they can assist you with negotiating, making offers, and explaining any offers that are made to you. Your legal representative can also assist you with formalising any final agreement that is reached by you and your former spouse, including drafting the terms of agreement or the Orders that reflect the agreement you have reached.

If you intend to engage in Mediation without legal representation, then it is important to have obtained legal advice from an experienced family lawyer ahead of your mediation to assist you with making suitable and appropriate offers that are within the range of outcomes that a Court might make if it was considering your matter. This will also allow you to consider and weigh up whether the offers being made by your former partner or spouse are appropriate.

Do you need to speak to a Family Lawyer?

Our experienced family lawyers can assist you with attendance at your Mediation, along with drafting any agreements or orders you wish to make with your former partner or spouse either prior to or following Mediation.

Contact us on (02) 9262 4003 for a confidential, no-obligation discussion, or submit an online enquiry.

The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.

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