Mediation can be useful — but it is not a one-size-fits-all process
Mediation is one form of dispute resolution. An independent third person helps the parties identify issues, explore options and try to reach agreement.
It can happen before Court proceedings begin or after a case has already started. The appropriate process depends on the dispute, the parties, any safety concerns and the type of orders being considered.
1. What is mediation?
Mediation is a structured negotiation assisted by an independent mediator. The mediator does not decide who is right or impose an outcome.
Instead, the mediator helps the parties:
- identify the issues that need to be resolved;
- exchange relevant information;
- consider possible options;
- test proposals and compromises; and
- record any agreement that is reached.
Mediation can be conducted face-to-face, by video, by telephone or in separate rooms or virtual spaces where the parties do not communicate directly.
2. Family Dispute Resolution and parenting matters
Family Dispute Resolution (FDR) is a specific form of dispute resolution used for parenting disputes.
Except in limited circumstances, a person who wants to apply to the Court for parenting orders must first attempt FDR. If the dispute is not resolved, or if an accredited Family Dispute Resolution Practitioner decides FDR is not appropriate, a section 60I certificate may be issued.
3. When can parenting FDR be bypassed?
The Family Law Act provides exemptions in certain circumstances. These can include cases involving:
- family violence or child abuse, or a risk of either;
- urgency;
- some circumstances involving contravention of existing parenting orders;
- inability to participate effectively; or
- other circumstances recognised by the legislation.
Whether an exemption applies depends on the facts. If safety is an issue, do not assume that you must attend ordinary joint mediation before seeking legal protection or urgent orders.
4. Mediation and property or financial disputes
Financial and property cases are different from parenting cases. There is no section 60I certificate requirement simply because you want property orders.
However, the Family Law Rules contain pre-action procedures. Unless an exemption applies, prospective parties are expected to genuinely try to resolve the dispute before starting proceedings.
That can involve:
- negotiation between the parties or their lawyers;
- mediation;
- conciliation;
- arbitration in appropriate financial matters; or
- another suitable dispute-resolution process.
Emma and Daniel disagree about how to divide the home, superannuation and savings. They exchange financial documents, obtain valuations and attend mediation with their lawyers. They reach agreement on most issues and later ask the Court to make consent orders, avoiding contested proceedings.
5. Good mediation depends on proper financial disclosure
A property mediation is only useful if both sides have enough reliable information to make informed decisions.
In financial and property matters, parties have duties of disclosure. This can include information about income, property, liabilities, superannuation, companies, trusts and other financial resources.
If important financial information is missing, the mediation may need to be delayed or limited until proper disclosure has occurred.
6. What happens in a mediation session?
Processes differ, but a typical mediation may include:
The mediator identifies the issues, considers safety and suitability, and may speak to each party separately beforehand.
The mediator explains the process, confidentiality arrangements and how negotiations will be conducted.
The parties identify what needs to be resolved and what information is needed.
Offers and options are discussed, sometimes jointly and sometimes through separate private sessions.
If agreement is reached, the terms are recorded and the parties can consider how to formalise them.
If the matter does not settle, the unresolved issues can still be clearer and narrower than before mediation.
7. Do lawyers attend mediation?
Sometimes. Whether lawyers attend depends on the type of mediation, the complexity of the issues, the service being used and what the parties agree.
Lawyer-assisted mediation can be particularly useful where there are substantial assets, complex legal issues, significant power imbalance or a need to draft binding settlement documents promptly.
Even where lawyers do not attend the mediation itself, obtaining legal advice before accepting a final agreement can help you understand the consequences.
8. Is a mediation agreement legally binding?
Not automatically. The legal effect depends on how the agreement is documented.
Parenting agreements may be recorded in a parenting plan or formalised through consent orders. Financial agreements can often be formalised through consent orders or, in suitable circumstances, a binding financial agreement prepared in accordance with the Family Law Act.
9. Potential benefits of mediation
The parties retain greater say over the outcome instead of leaving every issue to a judge.
A structured process can reduce repeated correspondence and arguments.
Agreement can often be reached sooner than a fully contested Court case.
Resolving issues by agreement can reduce legal and Court costs, although mediation itself still has costs.
Private dispute resolution can keep negotiations out of the courtroom, subject to legal rules about confidentiality and disclosure.
Parties may be able to develop practical arrangements tailored to their family or financial circumstances.
10. When mediation may not be appropriate
Mediation is not appropriate in every case
Depending on the circumstances, ordinary mediation may not be safe or effective where there is family violence, coercive control, serious intimidation, urgent risk, inability to participate effectively, deliberate non-disclosure or another major power imbalance.
The fact that dispute resolution is encouraged does not mean a person should be pressured into an unsafe process.
11. What if mediation does not resolve everything?
Not every mediation produces a complete settlement. That does not necessarily mean the process was wasted.
Mediation may still:
- resolve some issues while leaving others for later;
- clarify the real points of disagreement;
- identify missing documents or valuations;
- reduce the number of matters requiring Court determination; or
- create a basis for further negotiation.
If parenting FDR does not resolve the dispute, the 60I certificate may allow a party to commence parenting proceedings, subject to the ordinary filing requirements. In financial cases, Court proceedings may be started after the applicable pre-action steps have been taken or an exemption applies.
Mediation is a tool — not a guarantee
Mediation can be one of the most useful ways to resolve family-law disputes, particularly when both parties have enough information to negotiate and can participate safely.
The best process is the one that fits the circumstances. Sometimes that is mediation. Sometimes it is lawyer-to-lawyer negotiation, arbitration, conciliation or Court intervention.