Judy Stewart, Director of Brisbane’s Stewart Family Law
Family law matters are personal, and the outcomes can have a marked long-term effect on both parties' financial and family future. Resolving family law matters in a more informal setting often reduces the stress for those involved and may allow for better decision-making, which is important when it comes to matters involving children and financial security.
This article provides a comprehensive overview of mediation, its history in Australian law, how it works, and why it is a preferred method for resolving family law matters.
What is mediation?
Mediation is a dispute resolution method in which an impartial third party, known as the Mediator, helps two or more parties involved in a conflict reach an agreement. In the context of family law, mediation is often employed to help parties resolve disputes concerning parenting arrangements and property settlements, without the need for lengthy and costly court proceedings.
Unlike a Judge or Arbitrator, the Mediator does not make decisions for the parties. Instead, the Mediator helps the participants explore potential solutions and reach an agreement on their own terms.
History of mediation in Australian Law
The use of mediation in Australian law has been formalised over the past few decades. In family law, mediation and dispute resolution processes became more prominent following the 2006 reforms requiring separating couples to attempt Family Dispute Resolution (FDR) before filing for parenting orders in Court. This legislative change was aimed at reducing the pressure on the court system and encouraging parents to resolve disputes in a more collaborative and less adversarial manner.
Parties with a dispute about parenting matters must make a genuine effort to resolve their dispute through FDR prior to any application to Court. There are a number of limited exceptions including where parties are in agreement and are applying for consent orders or where the Court is satisfied that there are circumstances of urgency, risk of family violence or FDR is not appropriate.
Since the pre-action procedures were introduced by the Court in 2021, attempting to resolve property matters through mediation is a requirement prior to filing Court proceedings in most property matters.
Necessity for mediation in Family Law matters
Mediation is now an essential step in the family law process for most disputes and benefits both the participants and the legal system. Mediation helps reduce the burden on the Courts, which generally manage a significant backlog and are at times overwhelmed with cases. Mediation provides a cost-effective and time-efficient solution compared to traditional litigation, which can take months or even years to resolve. Mediation enables families to work through their matters related to divorce, separation, and parenting in a low-pressure, confidential setting.
How can mediation empower Family Law participants?
Participants to mediation can have a greater degree of control over the outcome of their dispute. Unlike traditional Court proceedings, which can often feel pressured and adversarial, mediation encourages collaboration and negotiation. It is particularly beneficial in family law matters, where ongoing relationships between the parties - such as between parents - are often crucial for the long-term health and wellbeing of any children involved.
Mediation provides participants with the opportunity to discuss their concerns in a safe environment with the assistance of an experienced Mediator. This can lead to more amicable resolutions, which in turn help preserve family relationships and promote healthier future interactions.
When is mediation recommended?
Aside from being a necessary step before commencing Court proceedings, mediation is suitable for most family law matters, including:
Parenting Arrangements: When parents disagree on parenting arrangements, such as where the children should live or how much time they should spend with each parent or other significant people in the children’s lives.
- Parenting Disputes: Even after parenting arrangements are made, disputes or differences may arise. Mediation is an excellent place to resolve these disputes.
- Property Settlements: When couples need to divide assets following a separation or divorce, a mediation setting can provide the structure to reach an agreement.
- Child Support: When parents need assistance in negotiating child support payments and arrangements, working with a Mediator can help to reach a resolution.
Mediation is particularly effective when participants are open to discussion and willing to find common ground. It is also a helpful option when the parties have an ongoing relationship that needs to be maintained, such as a co-parenting relationship.
When is mediation not suitable?
While mediation is beneficial for many family law matters, it is not always appropriate. Some situations where mediation may not be suitable include:
- Domestic & Family Violence, Abuse: If there is a history of domestic or family violence or child abuse, mediation is generally not the best option. In cases where one party feels threatened or unsafe, mediation can exacerbate the power imbalance. Special considerations need to be made to ensure the safety of all parties involved if mediation is commenced in these circumstances. It is important to remember that mediation in these circumstances can still be managed by an experienced Mediator and is likely to be a preferable option than litigation.
- Urgent Matters: If an issue requires an urgent Court decision, mediation may not be the appropriate first course of action. Court intervention may be necessary to address urgent issues however mediation may still be appropriate following, or in conjunction with, Court proceedings.
- Imbalance of Power: If there is a significant power imbalance between the parties (for example, financial abuse, coercive control or manipulation), mediation may not be effective. In such cases, one party may not feel comfortable negotiating freely. A skilled mediator can still assist in such circumstances.
- Unwillingness to Cooperate: If one or both parties are unwilling to engage in mediation or are not interested in reaching an agreement, mediation is unlikely to succeed.
- Substance Abuse or Serious Mental Health Issues: If one or both parties are impacted by substance issues or severe mental health issues, mediation may not be the right setting for resolutions.
The role of Mediators
Mediators are trained professionals who facilitate the mediation process. Their role is to remain neutral and impartial, helping parties to communicate effectively and work towards a mutually acceptable solution. Mediators do not offer legal advice or make decisions for the parties; rather, they guide the participants through the process, ensuring that all viewpoints are heard and that both parties have an equal opportunity to express their concerns.
What to look for in a Mediator
When choosing a mediator, it is important to ensure they are qualified and experienced in family law matters. Mediators should be accredited by a recognised body. They should also have experience in the relevant area of law, such as parenting disputes or property settlements.
Types of mediation services
There are various types of mediation services available:
- Private Mediation: Typically arranged by the parties or their lawyers. Private mediators charge an hourly, half-day or daily rate and offer a flexible and personalised service.
- Public Mediation: Provided by government and community-based organisations, these services are often charged at a lower cost, on a sliding scale or even free of charge in some settings.
- Court Based Mediation: as part of the litigation process the Court may order the parties to attend mediation conducted by Judicial Officers.
- Virtual Mediation: Conducted online, which is particularly useful in cases where the parties live in different locations or when in-person meetings are not possible or appropriate.
- Child-Inclusive Mediation: Involves the children in the mediation process, allowing them to express their views on parenting arrangements. The children do not attend the mediation however they have the opportunity to share their views and concerns with a child-inclusive practitioner prior to the mediation. That practitioner is then involved in the mediation and provides feedback to the parties.
- Shuttle Mediation: The Mediator moves between the two parties, who are in separate rooms, to discuss issues without direct communication.
- Lawyer Inclusive Mediation: In many types of mediation, a lawyer may also be present with one or both parties.
Costs comparison
Mediation is generally far more affordable than Court proceedings, as well as much less stressful. The cost of mediation varies depending on whether it is private or public, as well as the Mediator’s experience and location. Private fees may range from $200-$700 per hour, and sessions may run in hour, half-day, or day blocks. In comparison to Court fees, legal representation, and other associated costs, mediation is often a much more cost-effective option, with fees being split between the parties in most cases.
Mediation is an essential and effective tool in family law. It provides a flexible, collaborative, and non-adversarial process for resolving disputes. Whether you are dealing with parenting issues, property settlements, or divorce, Mediation can offer a more amicable and cost-effective solution. By empowering participants, reducing the pressure of judgment, and providing a platform for open communication, mediation is crucial in helping families find solutions that work for them. However, it is important to recognise when mediation is suitable and when Court intervention may be necessary.
