MEDIATION - ESSENTIAL INFORMATION

Mediation is an informal process in which you and the other party decide the final outcome of your matter. It is a process in which both parties are the decision-makers!  On the other hand, in a litigation process, a judge imposes a decision on you and the other party regardless of whether you like it or not. A litigation process is very stressful, lengthy (takes up to 2 years), and extremely costly (anything between $20K-$250K per party) compare to mediation which is a financially and time-efficient process. 

Not really, as the Family Law Act (Cth)1975 requires the separated and/or divorced parties in parenting matters to attempt to solve their dispute in mediation before applying to Family Court unless an exception apply. In other words, the FDR process is compulsory for the parties before commencing litigation.  

The exemptions are set out in s60I(9) of the Family Law Act 1975 as follows:

• Where there is a significant allegation of child abuse or neglect
• Where the circumstances are urgent eg. when one parent attempts to leave together with a child to another state in Australia or overseas without the consent of another parent or 
• When a child is kept in the care of one parent only and this is not in the child’s best interest. 
• If there are significant issues of family violence a person may apply for an exemption from mediation

The Exemptions for attending mediation can be assessed by the Family Law Mediator (FDRP), a legal practitioner, and directly by the Family Law Court.

Yes! Confidentiality is at the very heart of a mediation process and information obtained this way cannot be used as evidence in court unless exemptions apply. 

The FDR Practitioners are obliged by the family law legislation to report information regarding child abuse and report the danger to a person's life and property damage to prevent the commission of a crime.

A lawyer's presence is not compulsory as mediation is an informal process. However, both parties can attend a lawyer-assisted mediation. This requires the mediator and both parties consent.

Self-represented Parties involved in parenting matters are required to seek legal advice, and in property-related issues, they must seek both legal and financial advice before participating in mediation. 

It is highly advisable to thoroughly review all materials provided on the FAIRGO MEDIATION website. 

Additionally, attending a pre-mediation coaching session, either alone or with the opposing party, is recommended. This session offers an opportunity to ask questions, gain clarity on the mediation process, learn effective strategies to handle stress, adopt a forward-thinking approach, and understand how the mediation procedure unfolds.

The short answer is NO goodwill agreements are not legally binding.

But a mutually agreed property and/or a parenting agreement in a form of a parenting plan can be turned into a court order (consent order) after lodging it with the Family Court. The Family Law Meditator will advise their clients on the steps to achieve it.

You can turn your goodwill agreement into a parenting plan in parenting matters and create a binding financial agreement in property matters, which will take a form of a contract upon signing and dating. A binding financial agreement is legally complex and requires legal assistance to be properly created.

NOTE: Always seek legal and financial advice before signing and dating any agreement!

A mediation is attended by the parties in conflict upon their assessment provided during each party Intake with a mediator in general mediation or an FDRP in family law matters. A support person including a party lawyer can attend mediation only upon a decision of a mediator and all parties’ consent. 

NOTE: Self-represented parties must obtain legal and financial advice regarding their parenting and property matters before attending mediation.

Mediation can take anything from 3 hours up to a significantly longer time depending on the matter. Therefore, more than one or longer mediation session may be required. Family Law mediation including parenting and property matters requires a minimum of two sessions.

A Child-Focused Mediation Process (CFP) involves the parents' consideration of the needs of their children when making parenting arrangements as per requirements of s60D of the Family Law Act 1975, indicating that decisions regarding child matters must be made with respect to the best interest of the child. 

A child is not physically present in this mediation model but all decisions regarding the child are focused on and assessed according to the impact they will have on the child and whether they will regard the child's developmental and emotional needs.

On the other hand, a child-inclusive mediation process (CIP) allows the voice of the child to be heard by the parents. However, the suitability of this must be first assessed by the FDR Practitioner, who will decide whether it will be a beneficial process for both the children and their parents. The children in this process are absent in the mediation room but can express their feelings and opinions regarding parental conflict and issues and decisions concerning their future via a child consultant, who is qualified to work with children. A child consultant meets with the child/ren in a separate room and later provides the family law mediator with feedback to pass on to the parents or provide it in person directly to the parents. This type of mediation requires the parents to be open-minded and their permission to engage children in such a process.

Interdisciplinary Collaborative Practice represents one variant within the realm of Alternative Dispute Resolution (ADR). In this process, couples and their legal representatives enter into a formal agreement promising that they will abstain from initiating or threatening litigation in connection with their dispute. Additionally, the parties' lawyers are obligated not to encourage their clients to resort to legal action.

This approach is theoretically accessible to all clients; however, it may be unsuitable for individuals with severe psychological or personality disorders, as well as cases involving a history of domestic violence.

When the matter is deemed suitable for Collaborative Practice, all clients and lawyers are bound by the duty of full and transparent disclosure of all relevant information related to the dispute. While advocating for their respective clients, lawyers also have an overarching obligation to promote the collective well-being of the family unit, striving for the most favourable resolution.

A neutral Collaborative Coach, such as a Family Dispute Resolution Practitioner or other experts (e.g., neutral financial advisors, child experts), can be engaged in the process to mitigate conflict opportunities and offer support.

If the collaborative process deviates from or fails to resolve the contentious issue, the agreement between the parties is nullified. Consequently, the lawyers cannot represent the separated couple in any subsequent or related litigation, and the clients are directed to new legal representatives.

Notably, Interdisciplinary Collaborative Practice tends to be more costly than traditional family and property mediation or Legally Assisted Mediation.

Legally-Assisted Mediation or Lawyer-Assisted Mediation (LAM) involves lawyers' presence during the mediation process. However, these lawyers do not wield direct influence over the mediation proceedings; they can only offer advice upon the parties' request. To facilitate this, a Family Law Mediator permits breaks during which the parties can seek their lawyers' counsel.

Upon successful mediation, the parties' lawyers draft the agreement. In cases where mediation fails to fully resolve the matter, the lawyers can continue to represent their clients in court proceedings. 

This type of ADR is also the most common form of dispute resolution for the parties with legal representatives 

It is a mediation conducted by an accredited Family Law Mediator, specifically a Family Dispute Resolution Practitioner (FDRP) without the presence of the Parties’ legal representatives. 

It can be conducted to solve the Parties’ disputes regarding parenting and/or financial & property matters.   

This approach is considered the most cost-effective method for resolving disputes.

Nonetheless, like each mediation process, it requires parties’ willingness to settle and their future-focused mindset.