Mediation is an alternative dispute resolution process whereby an experienced practitioner, former judge or barrister assistsparties to negotiate reachinga satisfactory outcome. Unlike litigation, the outcome of the mediation session is shaped by the parties’ expectations and positions, rather than rest in the hands of a judge or registrar. Family Law Mediation is a confidential process unless the mediator reasonably believes that disclosure is necessary to protect a child or person from the risk of harm, amongst other exemptions.
Mediation can be beneficial for a range of family law matters, such as parenting disputes, property matters, child support issues, spousal maintenance, the application of orders, breaches of existing orders, disagreements pertaining to parental responsibility, and many more.
Your mediator will be in touch with you to let you know what documents are required. In property and financial settlements, you must disclose your financial assets, liabilities and superannuation to the other side. This will help communicate your financial position to your ex-partner. If you engage a lawyer, they should be on top of which documents you need prior to the mediation.
The mediation session will vary depending on the skillset of the mediator. Your potential solicitorwill assist you in selecting a mediator that is best suited to your circumstances.
In all cases, however, the mediator will act as an independent third party, not as an advisor. The mediator will help you identify what the key issues are and facilitate a process whereby yourself and your partner can creatively generate practical solutions.
As mentioned, the mediation process will depend upon the mediator’s preferred methods. Some mediators require a face-to-face consultation before the mediation while other mediators will ask you to provide them with various information linked to your dispute. You do not need to bring a lawyer along with you to the mediation, but you are more than welcome to in most cases.
You maywish to be in a different room to your partner. This is known as ‘shuttle mediation’, whereby the mediator will shuttle from one room to the other to facilitate the mediation. Alternatively, the mediation may be conducted online via Zoom, or all parties can be in the same room if preferred.
This form of mediation is the most common model of mediation and is predicated upon problem solving and self-determination. The mediator will focus on what each party wishes to achieve (the interests) and will help parties come up with solutions to the issues. This model is useful when parties wish to continue their relationship, want to negotiate on an equal playing field and when time constraints are not present.
The goal for evaluative mediation is to reach settlement as quickly and efficiently as possible. The mediators are often experienced lawyers who are elected due to their extensive experience. They will evaluate the legal merits of each perspective and provide their opinion.
This avenue is useful when the matter involved complex and technical legal issues, the parties have unrealistic views and expectations, when the parties elect to hear an objective third opinion and when a quick resolution is required.
The duration of the mediation will vary on the cooperation of both parties and complexity of the matter. The session may be completed in a day, but it is not uncommon for mediations to run for multiple days. This will be clearly communicated to you by your lawyers and/or mediator.
Once an agreement is reached, the terms of the agreement can be formalised into a written document and filed with the court so that the agreement becomes enforceable.
If an agreement cannot be achieved during the mediation, the lawyers will discuss the next steps with you. This could include making further offersor taking the matter to court.
This will be organised by the mediator or your lawyers. Sometimes, mediation can take place at the offices of your lawyers, or even at the mediator’s office.
The cost of mediation will depend on whether you engaged the service of lawyers, the duration of the session and the choice mediator. On average, a single-day mediation session could be between $2,000 and $4,500 and even more for your mediator (which may be split between the parties), but this will vary. Your lawyers may charge between $2,500 to $4,500 for the day also.
Your role will be to brainstorm practical solutions to the issues raised in the mediation. You must be prepared to negotiate, compromise and be flexible in solutions. Make sure you come prepared with all relevant documentation, including your positions and your interests.
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