Mediation is an important step in resolving any conflict between separating parties.
Mediation is a process where a trained person assists two or more people who are in a dispute, to negotiate a mutually satisfactory resolution to their dispute. It is often referred to as “assisted” or “facilitated” negotiation.
Mediation can occur with lawyers present or without. In our experience, parties often only attend mediation on one occasion.
We recommend that you have a solicitor qualified in family law to assist you on this day. That way, any agreement reached can be drafted on the day (in a format satisfactory to be enforceable) and signed by both parties.
Mediation is a confidential process. What is said at mediation cannot then be used against any party if the matter is ever litigated in a court setting.
An essential part of productive negotiations is the willingness and capacity of the parties to discuss and identify issues frankly, to make concessions and to compromise where appropriate. The prospect of parties being open would be seriously undermined if such concessions and proposals could be subsequently used in court.
At the start of mediation, each party should sign an agreement, legally binding them to the principles of confidentiality for all parties.
The only exception to disclosure of what was said at mediation, is for the mediator themselves. The mediator may only disclose if there is a threat, whether actual or potential threat, to human life or safety, or an intentional or imminent serious harm to property, or if compelled by law to do so.
In most matters, mediation is suitable.
It is a productive way to facilitate negotiations. Even when parties’ positions are starting completely polarised, positive outcomes can be achieved from mediation.
Mediation may not resolve all of your issues in dispute but it often narrows the issues.
Matters, where mediation is not suitable, may be where there is a Violence Restraining Order in place preventing mediation from occurring or there are allegations of child abuse that the other party is fiercely opposing.
To prepare for a mediation for financial matters, it is important to have full and frank disclosure exchanged between both parties prior to the day. That way, there should be less issues in dispute when determining the assets and liabilities of the parties.
For a mediation with respect to parenting, make sure you have a diary ready of key dates, be aware of proposals for special occasions (for example, school holidays and Christmas) and consider prior to the day, issues such as:
For a successful mediation, be fully prepared. You can seek advice from your lawyer about your plan to prepare for mediation.
Without thorough preparation, you are unlikely to be able to reach an outcome (or an outcome that you consider satisfactory).
Prior to the joint session of mediation, you are likely to have an intake session with the mediator.
The intake session usually takes anywhere between 1 to 2 hours and is a private session with you, the mediator and your lawyer if you are represented.
It is important in this private session for participants to be open with the mediator. Mediators (and your lawyers) understand that mediation can be impacted by certain emotions, such as grief, anger, fear or intense sadness. You can share this with your mediator before mediation rather than during it.
Anything that is discussed at a private meeting is confidential. It will not be disclosed to the other party unless you asked the mediator to do so.
Shortly after the intake session (usually within the week), you will attend a joint session for mediation. Depending on who the mediator is, this is usually either half a day or a full day.
Generally, the mediation is conducted as a joint session (that is everyone present in the same room) with the parties having an opportunity to identify the issues, explore options and discuss settlement.
There are always opportunities for breaks and private sessions with your lawyer.
The mediator then often works to resolve issues and reach an agreement.
In some cases, mediation can occur separately. These are often referred to as “shuttle mediations” and are common in cases where there are allegations of family violence.
If agreement is reached at mediation, you will be expected to sign a Heads of Agreement or in the case of pending matters before the court, final consent orders or other documents that make an agreement binding.
Until that is completed, nothing “agreed” or said in mediation is binding.
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