Family Mediation or Family Dispute Resolution is a requirement for parenting matters (except in a limited number of cases) before a parenting matter may be taken to Court.
Mediation is not yet a requirement before any other type of matter may be taken to Court concerning the breakdown of a relationship but it is nevertheless part of the pre-action procedures in financial cases (including property settlement) requiring the parties to:-
- participate in dispute resolution services; and (if those are unsuccessful);
- inform the other parties of their claim and explore options for settlement; and
- finally to comply with duties of disclosure.
Family Mediation is offered by the Family Relationship Centres funded by the Federal Government, is also offered by various community organisations such as Relationships Australia and is also offered on a fee for service basis by various private mediators or mediating organisations. In general, the services offered by the Family Relationship Centres are quite slow compared to private mediator processes and delays of anywhere between 2 and 5 months are not uncommon. However the mediation service itself is highly subsidised and is thus much more affordable than private mediators.
Mediation itself is a process where, with the assistance of an independent and neutral person (the mediator) the parties;
- identify the disputed issues,
- develop options,
- consider alternatives; and
- endeavour to reach agreement.
The mediator has no advisory role nor any ability to impose an outcome.
Mediation may therefore be looked at as a collaborative process where the parties who are in dispute are assisted by the mediator’s skill and experience to step out of the conflict, reconsider all alternatives and work towards the best outcome for all (and in the case of parenting matters, the best outcome for the child or children concerned).
The role of lawyers in mediation is twofold:
- Providing proper advice to the client before the clients attends mediation; and
- If the lawyer goes to the mediation with the client, providing what is referred to as the “expert contributor” role (see The role of lawyers in mediation; Insights from mediators at Victoria’s Civil and Administrative Tribunal), Kathy Douglas and Becky Batagol, Monash University Law Review, Vol 40, No. 3, p.780).
The first of these roles is to ensure that you, as a client attending mediation either for parenting or property or other financial matters, are fully and properly advised with respect to:
- what you may expect to happen in the mediation;
- what the circumstances of your particular case might produce if the matter were dealt with in Court;
- the strong points and weak points of your case; and
- a consideration of the range of options that you could take to the mediation.
The lawyer’s advice before mediation should also include advice with respect to what the cost of going to Court might be and the likely duration of the Court process so that you can take those factors into account as well whilst negotiating during the mediation process.
The second role of the lawyer, the “expert contributor”, is not to do the negotiating or the talking for you. In fact, if that’s what your lawyer wants to do, then you should seriously consider engaging a new lawyer. (unless you need that, such as in cases of domestic violence).
Traditionally, lawyers have been regarded as adversarial, meaning that they are good at opposing or disagreeing with others. In fact, some would say that lawyers enjoy that process.
As mediation is more a collaborative process, where parties are encouraged to step away from their conflict and try to resolve matters on a best outcome for all basis, a lawyer acting adversarily is not going to produce a good outcome. You therefore need to engage a lawyer who can adopt a collaborative approach and let the mediator use his or her skills and experience to help you and the other party to work together to produce the outcome that you want.
The role of the lawyer as the “expert contributor” is to share legal advice with you and perhaps also with the other participants during the mediation and also to help in the “reality testing” of all options that are put forward. As the mediator is unable to give advice, that’s what your lawyer really should be therefore to give you advice as you need it during the course of a mediation sometimes to give all the parties the benefit of more general legal advice and to help you test for yourself whether or not an option being put forward by the other party will work in all of the particular circumstances that exist in your case.
If you are considering attending mediation (either because you have to in relation to parenting matters or because it has been proposed in relation to financial matters), we are able to provide the pre-mediation advice that you will need and as we have a Family Dispute Resolution Practitioner on staff, he will be able to give you specific and accurate information and advice with respect to the mediation process itself, the various stages that will be gone through and how to best prepare yourself for that process. We will also be able to give you advice with respect to the range of likely outcomes from a Court process, so that you may then bear those outcomes in mind when you are negotiating with the other parties. We can also give you advice with respect to the likely cost of any legal proceedings in Court and the length of time that those proceedings are likely to take.
Additionally, we will be able to assist you with respect to attendance at mediation with you so as to fulfil that expert contributor role with you.
Please contact our office in relation to any assistance that you may need with respect to preparation for either a parenting, financial issues or family mediation.