When a couple decides to split it’s important for them to know the pathways they can follow to ensure positive outcomes for all of those impacted.
Here we’ll examine divorce mediation vs lawyer-led negotiation in regards to costs and timeframes. The differences are significant and substantial!
What Is Divorce Mediation?
Divorce mediation is a form of alternative dispute resolution. Essentially it eliminates the adversarial nature of divorcing by having the two parties who are in conflict come together and collaboratively develop plans for the future.
The plans developed have the best interests of the children as the focus. This idea is enshrined in law (the Family Law Act, 1975) and provides a very useful way to get parents to frame the new normal for their split family.
The plans are usually around parenting and how that will now work given that the parents have split. They are also around the shared property and finances and how these will be split, in the best interests of the children.
It is important to note that planning can happen around any and all issues parents in conflict may have. At Resolutions Australia we’ve supported parents to deal with issues around high school choices, religious obligations, maintaining cultural identity, payment of school fees and excursion costs, university course decisions, and more too numerous to mention.
It is important that potential clients know that their divorce mediator (more formally, family dispute resolution practitioner or FDRP) is a qualified and accredited professional. All family dispute resolution practitioners are mediators however not all mediators are FDRP’s!
At Resolutions Australia your divorce mediator is registered with the Office of the Attorney General of the Commonwealth of Australia. They also have (at least) a Graduate Diploma of Family Dispute Resolution.
What Does a Divorce Lawyer Do?
More commonly known as a family lawyer, these professionals provide legal advice to clients who are divorcing. This is alongside their broader role of providing legal advice across the family law field.
Your divorce lawyer is able to outline the divorce process and the necessary steps to take. They can also approach the Family Court to organise the orders necessary to finalise a divorce. As well as this they can negotiate on your behalf with the lawyer acting for the other party in the divorce.
If negotiation between the lawyers acting isn’t successful then they are able to organise a court hearing and representation in court, where a judge will make decisions regarding parenting responsibilities and financial and property settlements.
At Resolutions Australia we always recommend seeking independent legal advice when considering divorce and before taking part in divorce mediation.
Divorce Mediation vs Lawyer: Key Differences
There are a number of key differences between divorce mediation and using lawyers to negotiate between parties.
The most important difference is that at mediation the two parties are collaborating to develop plans that work effectively for all concerned whereas lawyer vs lawyer negotiation is adversarial. This means that the parties have decided what is best for them and are trying to achieve this, usually to the detriment of the other party. There isn’t any collaboration with lawyer negotiations and the best interests of the children can get lost in the ‘battle.’
Another significant, and often overlooked difference, is that clients using mediation are significantly more likely to have an improved parenting relationship going forward than those who use lawyer negotiation. Mediation provides a positive framework for establishing the new normal for the split family. Lawyer led negotiation, it could be argued, does exactly the opposite. It pits one party against the other as each tries to take the moral high ground and far too often it puts the children in the middle of this toxic tussle.
Another valuable difference worth noting is that family mediation has a high success rate. Anecdotally, 80% of clients presenting and undertaking mediation are successful. That is, they’ve resolved issues by developing agreements that both parties can work with.
You have to wonder if the same can be said of lawyer-led negotiations…?
Cost Comparison: Mediation vs Lawyer for Divorce
Divorce mediation vs divorce lawyer costs? A substantial difference!
At Resolutions Australia we charge $800 per party for the entire mediation process. Initial enquiry, intake session, a 4 hour mediation, and drafting and distributing agreements for $800 per person.
Our family mediation fees are at the lower end charged by private mediators.
Comparing our fees with lawyer led negotiation and the difference is stark.
To resolve the same issues as clients have when mediating will almost certainly cost into the tens of thousands of dollars. We’re aware of divorcing parties who have spent into the hundreds of thousands of dollars and also know of a number who have simply battled back and forth until the finances and assets have run out. Literally being bankrupted by the process.
Time Comparison: How Long Does Each Option Take?
A number of clients presenting to family mediation with Resolutions Australia speak of the difference in time between mediation and lawyer-led negotiation. Many want to deal with issues and move on. They want to get their new life started, minimise disruption and conflict for the children, and develop easy, workable plans with a view to the future.
How long does divorce mediation take?
Resolutions Australia regularly completes both intake and a standard mediation in a single day. An enquiry call is usually 15-20 minutes, intake up to 90 minutes and 4 hours of mediation.
How long does lawyer-led negotiation take?
Now compare the timings for mediation against that for law-led negotiations. Letters sent, letters disseminated, advice given, decisions made, replies drafted and sent, reply received and discussed, deemed unsatisfactory, advice given, decisions made, reply with proposal drafted….
Much like the cost there is little comparison between the two dispute resolution pathways. Legal disputes between parties regularly continue for months or years and even then may only be resolved by finally deciding to undertake a Family Court hearing which in turn may take months or years to be completed, and at a substantial cost.
One point of note with this protracted legal timeline is that when considering the best interests of the children (as the law requires) their needs will change while the legal battle continues. This means that a point of contention between the parties may go back and forth for months then no longer be relevant as the child’s needs have changed. The children may have needs around primary schooling, sport pick ups and drop offs, and time with grandparents being negotiated when the family split occurs yet the legal negotiation continues until they’re in high school, have their own car, and their grandparents have passed away! A stark example but it certainly highlights how life, and legal costs, continue on under the shadow of protracted lawyer led negotiations.
When to choose mediation over a lawyer
Your family lawyer should advise you that mediation is expected to be attempted. The Family Court and the family law system recognise the value and benefits of family mediation.
In almost all instances a split couple should make a good faith effort to mediate. It will save time, money, and energy, and will support an improved parenting relationship going forward.
There are times when mediation isn’t suitable. Family and domestic violence, and significant physical or mental health concerns may mean mediation isn’t suitable. Another reason may well be a diminished capacity to engage in or understand the process.
In these situations Resolutions Australia will support you to engage with a family lawyer as well as provide referral support to other services as needed. All free of charge once we’ve heard about your unique situation.
How to Get Started With Divorce Mediation at Resolutions Australia
If you’re looking to take charge of your newly emerging future following the end of a relationship we encourage you to get in touch.
Our clients want to do right by their children, wish to be positive about family changes, and seek to ensure that their arrangements and agreements are decided by them as opposed to a judge. After all, as parents, they know their children better than any lawyer or judge ever could.
Our clients are wise enough to see the benefits to mediating in saving time, money, and emotional energy. And that collaborating is far more positive than battling!
If you want to do right by your children and develop lasting positive results we encourage you to call or email and get started on a process that empowers and produces very positive outcomes.
Some FAQ’s to Finish…
Do both parties have to agree to mediation?
Yes. Mediation cannot take place if one party doesn’t agree. This refusal will be noted on a section 60i certificate which will support the willing party in future Family Court hearings if required.
Can I bring my lawyer to mediation?
You certainly can as long as the other party agrees to this. They may then bring their lawyer. The lawyers can advise you as mediation progresses however the mediation is between the clients not the lawyers and the mediator will not allow them to actively participate.
Is mediation available if there has been family violence?
This is decided on a case by case basis with mediators always erring on the side of caution if there is any doubt. If a survivor of family violence doesn’t wish to mediate then it won’t happen. Family violence can impact a client’s emotional ability to engage as well as the power balance within the mediation. It can also trigger responses that are not conducive to successful mediation.
How is Resolutions Australia different from a law firm?
Resolutions Australia isn’t a law firm. We are dispute resolution experts. We don’t offer legal advice. Unlike lawyers we seek to support clients to reach collaboratively based agreements. We’re also able to offer support, guidance, and advice around finding social services that can help during this tough time.
Lastly, and most importantly, we never lose sight of the best interests of the children in all that we do!
