A number of people who’ve decided to divorce assume that to do so involves little more than contacting a lawyer and organising their day in court to get their particular situation out in the open and any issues resolved.
This myth is a long way from the truth.
The Family Law Act (1975) (and subsequent amendments), coupled with the Family Court, encourages parents to consult and reach agreement together on major issues impacting the children. In reality this means that (with a few exceptions) the Family Court will expect mediation to have been attempted.
The key word here is ‘attempted.’ If both parties, in good faith, have attempted mediation but failed to reach an agreement then the Family Court may need to be involved.
What is Family Mediation?
Family Mediation or Family Dispute Resolution (to use its more formal name) involves the divorcing parties utilising the skills of a mediator who is a registered family dispute resolution practitioner (FDRP) to resolve parenting and/or property and financial issues.
The agreements are developed with the best interests of the children as the focus.
Framing Family Mediation and Conflict
Family mediation is a useful tool for minimising conflict between the divorcing parties. The focus on the best interests of the child helps ensure that both parents keep their children at the forefront of their thinking throughout the process. Conflict between the parents isn’t part of the process and an astute mediator will use their expert skills to quickly and expertly have participants return to the child focus if conversation strays. As well as this the FDRP will use their skills to have the parties collaborate to identify and plan to address the needs of the children.
Rather than being adversaries the parents collaborate to ensure that, despite their differences, they develop plans for best supporting the children.
The Benefits of Mediation
So, with all this information about the family dispute resolution process and framing, just what are the benefits of mediation?
Well, they’re numerous and significant.
First and foremost in the minds of many divorcing parents is the cost of the process. By mediating successfully parents can potentially save tens of thousands of dollars in legal fees. We’ve all heard horror stories about lengthy legal negotiations and court cases. Sadly, all too many of them are true. And this to the point where parties are so rigid in their thinking that they’re prepared to litigate through lawyers and courts until the money runs out. A tragic set of all too common circumstances.
By entering the family dispute resolution process and being determined to mediate successfully parents stand a significantly greater chance of maintaining a positive post-divorce relationship. As their planning has been collaborative both parent parties have a greater intrinsic motivation to ensure these plans are successful than if a plan was handed down by a judge.
Communication is stronger, greater flexibility is built into the plans, ongoing consultation and collaboration are more likely, and increased consistency in parenting approaches is more evident.
The positives of family mediation are significant when viewed through the lens of the long term best interests of the children!
All About the Family Court
The Australian Family Court handles all family law matters and does so using the concept of the best interests of the children impacted as their guiding principle. From consent orders to issuing divorces to emergency hearings to protection orders, the court handles all manner of family law issues.
Because of the court’s broad remit it is a busy place and unfortunately backlogs and postponements occur.
The court expects divorcing couples to have made a genuine effort to reach agreement on parenting and financial matters prior to appearing.
Why Go to Court?
There are several rationales for attending court.
If agreements can’t be reached then the court can consider all evidence and make decisions for the divorcing parties. If one of the parties can’t be contacted or doesn’t attend mediation then the other party can seek finality and resolution via the family court. If family and domestic violence is a factor then attending court may be preferable to attempting mediation. A further reason is to seek urgent rulings on matters such as one parent leaving the country, visitation issues, or health issues impacting the parties or children impacted.
How the Court Addresses Conflict
When considering the court vs mediation it’s important to recognise that while mediation is a consultative, collaborative effort the court isn’t.
The family court, like all courts, is adversarial. That is that the two parties present their evidence to the court and a magistrate makes a decision on a way forward. In essence they decide on ‘winners’ and ‘losers.’ Thankfully, in Australia, the court considers the best interests of the children and as such rulings may take evidence and ideas from both parties in conflict and develop rulings that address all concerns and issues raised.
Likely Outcomes of the Family Court Process
Outcomes of the family court process are many and varied. When considering court vs mediation it’s important to recognise the range of possible court outcomes and how they may impact on the split family, particularly the children.
Given the backlog of cases the family court has, divorcing parents may not get a day in court and a ruling for 12- 18 months. This has an enormous impact on children and their relationship with parents if valuable co-parenting time doesn’t occur for months or even years on end. In fact relationships can be harmed irreparably.
The costs associated with court can be enormous and after all the expense, time, and emotional turmoil a parent may very well have to deal with a ruling that is the antithesis of what they hoped for. In short, you could spend thousands and have a ruling made that profoundly limits your ability to see and parent your children.
Another common outcome of the family court process is that once a ruling is made there can be a tendency for the ‘losing’ or still aggrieved party to appeal, relitigate, file new orders, raise further issues and essentially weaponise the legal process. This does irrevocable harm to all who are impacted by the process. From the divorcing parents, to the children, to common friends, to extended family as the conflict becomes normalised, increasingly heated, and emotionally draining. In short there are no ‘winners’, the court process is abused, and relationships are lost and all because an aggrieved party takes the stance that they’ve ‘lost’, the court hasn’t been fair, and that they’ll keep ‘fighting’ on principle. There is no positive outcome when the family court process becomes an endless cycle.
Somewhere in the Middle?
Mediation vs court? Court vs mediation? Is there another pathway? Yes, and it’s an interesting one with sadly similar outcomes to time spent in family court.
Lawyers and Negotiation
At Resolutions Australia we always encourage our clients to seek independent legal advice. At times clients may make a cursory effort at mediation, receive their Section 60i certificate then return to their lawyer with a view to undertaking ‘real’ or ‘proper’ negotiation through legal channels.
In effect they’ve dismissed the positives of family dispute resolution and decided that lawyers negotiating back and forth via email, letter, or meeting is the preferred method of dispute resolution.
While clients may see putting issues to resolve in the hands of lawyers as a positive step there are, sadly, numerous negatives to this approach.
Parenting Plans, Property, and Finances
Yes lawyers can successfully negotiate parenting arrangements as well as property and finance issues connected to the failed relationship. Unfortunately there are a number of negatives involved in this.
The time taken to reach agreement on even the most minor issues can be lengthy. Instructions from clients are taken, letters are drafted and sent. Letters are received and discussed with the other party, instructions are taken, a response is drafted and sent. A week? Perhaps longer? And for what, a minor 15 minute alteration to child changeover times following a weekend with Dad? And what of the cost of this process? That one interaction on one point connected to a minor aspect of a parenting agreement could cost each parent hundreds of dollars.
When considering the example above, and in relation to mediation vs court we can see how potentially protracted and costly this third way can be. To highlight this consider the complexities of dividing property and finances where inheritances, family trusts, and a range of part owned business entities are involved. Years may pass and finances may be drained.
While this third path may be appealing as a way to avoid the face to face or emotions and stresses of fronting the family court it is a pathway fraught with negative consequences.
Positive Outcomes For Parents
All parents want what’s best for their children and it is parents we should look to first to support the provision of providing what’s best.
While the courts can decide and lawyers can negotiate, both pathways see the input and contribution of parents diminished when compared to mediation. This is a profoundly important point to recognise.
The far and away best opportunity to achieve positive outcomes for children is family mediation. While the mediator manages the process it is the parents (and only the parents) who decide on the agreement in light of the best interests of the children. Through collaboration, empowerment, and determination rather than passive engagement and adversarial conflict based external decision making comes results for children that are authentic and realistic.
At Resolutions Australia it is the point above that we stress to potential clients. If you can see the positives in our process we encourage you to get in touch. For the sake of your children, your own wellbeing, and a brighter future for your split family we urge you to make contact.
