Mediation can be a way for separated couples, or in fact any parties in dispute, to resolve their issues, rather than making an Application to Court. The majority of separating couples are able to reach agreement in relation to their financial matters and arrangements for any children. Even where litigation is commenced most matters ultimately settle by agreement.
Roberts Nehmer McKee are able to assist in providing you legal advice and representing you in a mediation and Kerrie Dixon (partner and accredited family law specialist) is also available to conduct mediation.
What is Mediation?
Mediation is a co-operative and voluntary problem solving process conducted by a specialist practitioner, who is independent of the parties. The mediator helps assist people to define the issues in dispute and resolve some or all of their disputes.
What does the Mediator do?
The mediator is trained to help parties problem solve in a productive manner and will guide the communication process so everyone has a chance to be heard. The issues in dispute will be identified and various options and solutions explored and discussed so that where possible an agreement can be reached on some or all of the issues. The Mediator may offer suggestions or options to consider but will not make any decisions – the final agreement is up to the parties.
Why participate in Mediation?
Mediation is a quicker, less costly process than litigation and it enables the parties to have control over the ultimate outcome. More importantly it reduces the level of stress and conflict between the parties which is important particularly if they need to have an ongoing relationship as parents. As indicated above, most matters do settle by agreement and mediation is a process that can assist with reaching agreement in a respectful way.
We encourage clients to consider mediation or other primary dispute resolution (eg negotiation) prior to filing proceedings in most cases (unless for one of the reasons above it is inappropriate).
In many cases mediation is a required step either prior to or in the initial stages of litigation. With some limited exceptions it is now compulsory for separating couples to attend a family dispute resolution provider before starting court proceedings relating to children. The Family dispute resolution provider is a mediator who must issue the parties with a certificate indicating that they have attended and made a genuine attempt to resolve matters.
How parties can prepare for mediation and what happens in mediation?
Both parenting and property disputes can be mediated and in both cases there is benefit in obtaining legal advice prior to a mediation. If both parties agree they can also have their lawyers attend the mediation. Prior to the mediation it is important for the parties to consider what issues are important to them and what options they would be prepared to consider. Negotiation involves some compromise so the parties should think about what are essential issues and what issues there can be concessions on.
The mediation will commence with all parties present and often the mediator may have had an initial intake discussion with each of the parties to confirm that the matter is appropriate for mediation and that the parties are both voluntarily willing to participate. The mediator will firstly outline and confirm the agreed process and make introductory comments. Then each party will generally be asked to give a short summary of the issues that they would like resolved. The mediator will then guide the discussion about the issues in dispute and possible options for consideration and assist the parties to communicate and negotiate.
The mediation may take a number of hours and during the mediation both parties will be given the opportunity where necessary to take a break. At times it might be appropriate for the mediator to have separate discussions with each party particularly if one or other of the parties are becoming upset or there is tension developing. It is entirely normal for someone to become upset or for there to be tension at times during the mediation, but the mediator will carefully manage the process to ensure that each party are treated respectively and have the opportunity to take time out and effectively participate.
Mediation is a confidential process. Therefore any discussions, proposals or comments made in mediation are not to be disclosed if an agreement cannot be reached and the matter proceeds before the Court.
Parties who resolve their dispute at mediation can then document and formalize the agreement into Consent Orders, a Binding Financial Agreement and/or a Parenting Plan.
If the parties reach an agreement in relation to property matters at mediation, it is generally advisable to get the agreement settled by the parties legal representatives or if the parties are not represented by a specialist family lawyer, as there can be stamp duty and CGT benefits in formalizing the agreement.
What are the costs of Mediation?
Where mediation is conducted by a specialist family lawyer the costs will generally be in the vicinity of $1,500 for initial briefing and a three hour mediation. This costs would generally be shared between the parties namely, $750 each. In the event that the parties agree for the mediation to continue beyond 3 hours then an additional hourly rate of around $400 – $450 would be charged, again this would usually be shared between the parties.
Compared to the financial and emotional cost of litigation and ongoing unresolved conflict mediation is a cost effective alternative.