So, you and your significant other have decided to divorce and are curious as to next steps. There’s suggestions coming in from family, friends, and workmates and plenty of information and misinformation flying about. Couple that with the emotions of the situation and pressing questions around kids and income and property and process…
It’s one of life’s toughest times. Family mediation (or more correctly, family dispute resolution) is going to support you and Resolutions Australia is one of the family mediation services ready to do just that.
What Is Family Mediation in Australia?
Family mediation is designed to help those who are divorcing to come to agreement and make plans for the future. These plans and agreements are usually around parenting arrangements, finances, and what will happen with property and assets.
While there are some exceptions it is expected that all divorcing couples will attempt mediation. At Resolutions Australia we always advise potential clients to seek independent legal advice before mediating. We’re also very happy to explain the family mediation process with you.
Essentially family mediation is designed so that you and your ex save time and money by solving any issues causing conflict. The family court expects attendance at family mediation as it helps save the court’s time and client finances.
It’s important to note here that at family mediation it is you, the parents, that are devising plans and agreements for the future, not the court. Your decisions, your choices, your family’s future.
All aspects of family law in Australia are governed by the Family Law Act (1975) that uses the underlying principle of the best interests of the children as its foundation.
This means that at family mediation everything is focused on the needs of the kids and any personal issues between parties are siloed off to the side.
How Do I Prepare for a Mediation Session?
At Resolutions Australia we always tell our clients that the most important thing to prepare for mediation is your emotions. You’re going through one of the most stressful times in your life and as such your emotions can be heightened and overwhelming. We suggest that you frame family mediation as a business type meeting. That you remind yourself that you’re focused on the needs of the children, and that you’re going to let your emotions have a day off so that you can get on with this important task without being distracted. Easier said than done but we know that with practise our clients are able to leave their baggage at the door and keep returning to their children’s needs to see them through the mediation session.
Then to the practicalities of preparing…
- Read every piece of information your family mediator sends you.
- Ask questions of your mediator regarding anything at all you’re unsure of.
- During intake be open and honest. What you share in intake will never be disclosed to the other party. For a mediator there is nothing worse than a significant piece of information being omitted during intake only to appear in the mediation session. Relevant information kept secret can derail a mediation spectacularly quickly.
- At Resolutions Australia we only conduct online mediation. We ask clients to make sure they have a place to mediate that has reliable internet, where they feel safe and comfortable, and where they won’t be interrupted.
Gather financial documents
If you’re taking part in a financial or property mediation you must ensure you have all relevant documentation printed out and available. Mortgage documents, bank statements, car loan contracts, bills, crypto balances, personal loan agreements, business trust deeds. Everything! This ensures the mediation can proceed, safe in the knowledge that all areas of finance are accounted for.
Think about parenting arrangements
If you’re mediating a Parenting Plan it is a wise idea to document the current arrangement, how long it has been in place, and what is/isn’t working about it. It’s also important to consider factors that may impact on any future arrangement such as work, health, extended family needs, schooling, holiday times, and special occasions.
In effect you’re analysing what is, considering what could be, and identifying impact factors.
It is also important to consider your best case scenario, possible alternatives, and your bottom line in terms of when and how you’ll share parenting responsibilities.
Set realistic expectations
As you know, mediation is about collaboration. It isn’t about winning or losing or one parent being better off than the other. It’s all about the kids! With this in mind you need to be realistic. No one party is going to get absolutely everything they want from a mediation.
Further to this, it may take more than a session to reach agreement or an agreement may never be reached.
By entering family mediation with a positive mindset both parties are significantly more likely to reach an agreement. Again, put the baggage and the personal animosity at the door. It’s not about you!
Be ready to compromise
Mediation expects compromise. Be ready and prepared to make changes to support a positive new normal for your split family. Clients who refuse to compromise have this noted on their section 60i certificate when they fail to reach an agreement. It has been our experience that when they get to the family court, due to their lack of effort at mediation, the judge is not going to look favourably upon them.
Compromise is key. You’re looking forward, establishing a new normal for the children impacted, and this cannot come from just one parent. There needs to be a collaborative effort and both parties will need to compromise at some point!
Consider legal advice beforehand
At Resolutions Australia we always recommend seeking independent legal advice. Your family lawyer can advise you on your situation, steps to take, and the different aspects and consequences of the decisions that will need to be made.
We’re mediators and cannot legally offer legal advice however we certainly recommend it given the nature of the circumstances you’re in.
What Happens in a Family Mediation Session?
Most people have some form of idea about what happens in a mediation session and for the most part they’re correct. Two parties in conflict, a mediator managing, and hopefully the outcome they want. All true but lacking in specifics. Two important points missing are, firstly, that the mediation is child focused. Issues between the parents have little to do with the best interests of the children. Secondly, unlike court, family mediation isn’t you versus them. It isn’t adversarial. Both parties are expected to collaborate and the family mediator facilitates and manages this.
The following outlines family mediation in detail.
Step 1: Intake and Pre-Mediation Assessment
This is where your family mediator meets with you individually. They will ask you questions about your life, what has got you to this point, what issues are important to you, what ideas you may have pondered. Most importantly, they’ll ask you about your children and what you perceive their needs to be both now and into the future.
Intake usually takes 60-90 minutes.
From the information you’ve provided to your mediator they will make the decision as to whether this process is the right one for your situation. There is much to consider including (but not limited to) family and domestic violence, mental and physical health of the parties, capacity to mediate and understand the process, and power balances.
If the mediator decides the family mediation process isn’t appropriate for your situation they’ll then suggest you seek legal advice as to alternative steps.
Step 2: Introduction by the Mediator
Well, here we are, family mediation is happening, both parties have undertaken intake, the family mediator has sent plenty of information out about the process and you’ve been able to ask questions about things you’re unsure about.
The family mediator will conduct an introduction that includes a number of legally required statements. They will outline the process to both parties as well as the behavioural and communication expectations and then they’ll invite the parties to share their perspectives regarding the issues they are most concerned about.
Step 3: Each Party Shares Their Perspective
While each party is sharing their perspective on the issues most concerning them, the family mediator will be making notes and the other party will be listening and not interrupting. Both parties and the family mediator will be looking out for similarities with concerns, areas of disagreement and areas of potential agreement. The mediator will likely summarise the statements both parties have provided. They’ll clarify details, ask questions if needed, and likely write this information up so it’s visible to all.
Step 4: Identifying Issues
Now that each party has shared their concerns it’s time to identify and prioritise shared issues raised as well as any others that are apparent. This again is highlighted visually and becomes a working document where ideas, pathways, and extenuating circumstances can be detailed. It’s at this step that the family mediator is able to gauge an understanding of what each party finds most important, why this is so, and where the other party sits with the concern. In short it’s also a valuable opportunity for the parties to take their first steps in collaborating with each other by prioritising concerns before any negotiating or problem solving around the issues actually begins. A warm-up for what’s to come.
Step 5: Negotiation and Problem-Solving
Having narrowed the focus to the 2-3 main shared concerns the bulk of the session then becomes all about examining the issues, considering pathways to resolution, problem solving, identifying possible stumbling blocks, reality testing ideas, and discussing contingencies.
While this is happening the mediator is making notes, highlighting areas of agreement, checking understanding between the parties, asking the parties to talk through worst case scenarios, managing the balance of power in the room, and maintaining the expectations regarding communication and behaviour.
As this ebb and flow of mediation progresses points of agreement usually start to appear. These are noted and over time it is hoped that an agreement is reached around all the shared concerns being addressed.
Step 6: Agreement or Section 60I Certificate
An agreement has been reached either in part or whole. If needed, another mediation session is scheduled to continue tackling any outstanding issues.
The family mediator will then draft the agreement and distribute it to both parties. This is then signed and returned and both parties can move forward and undertake what’s been agreed upon. Congratulations!
In about 20% of cases Resolutions Australia deals with, an agreement isn’t reached. There can be a number of reasons for this including the behaviour of one or both of the parties, an unwillingness to make a genuine attempt to mediate, or simply that, try as they might, the couple couldn’t agree.
If no agreement is reached the family mediator will issue a section 60i certificate. This legal document will note the broad reason the family mediator believes was the cause of the parties being unable to reach an agreement.
This certificate should be given to your family lawyer who can then discuss alternative pathways to try. These are usually lawyer negotiated agreements of attending a family court hearing.
At Resolutions Australia we always suggest that after a week or two and some quiet reflection that couples retry mediation. It is often very successful the second time around!
What Happens If Mediation Fails in Australia?
As noted above, family mediation can fail for a number of reasons. It can also be terminated at any point in the process if the mediator feels it is prudent to do so.
A section 60i certificate will be issued (even if one party fails to accept our invitation to appear) and this can then be used to help organise a family court hearing.
It is very important to stress that just because mediation has failed once it may very well be successful if tried again. Changes in circumstances, realisation by parties of the costs and consequences of attending court, heightened emotions easing off, or simply a bit of quiet reflection coupled with a more positive mindset can all be factors in retrying family mediation.
At Resolutions Australia we believe that failure once isn’t failure always.
Mediation vs Court in Australia
You’ve likely had mediation explained to you by your family lawyer and know that it is expected as part of the divorce process. What a number of clients fail to realise is that family mediation is significantly more cost effective than lawyer led negotiation or undertaking a family court hearing. Resolutions Australia charge just $800 per client per mediation. Lawyers and a court hearing and the bill can easily enter the tens of thousands of dollars.
Family mediation is designed to solve issues in dispute at their lowest possible level, be cost effective and timely, and be collaborative to support a more effective co-parenting relationship in the long term.
Conclusion
By way of conclusion it’s important to recognise the view going forward. Family mediation helps you to make your own decisions, acknowledges that as parents you know your children best, seeks to have you see a positive new normal, and trusts that you and your ex are capable of creating authentic, realistic plans.
If you can see these benefits for you and your children then we urge you to get in touch with us. At Resolutions Australia nothing gives us greater pleasure than seeing families exit the tough times and take their first positive steps into their own unique special future!
A few FAQ’s to finish off
Is mediation compulsory in Australia?
Family mediation (family dispute resolution) is expected to be attempted prior to seeking a family court hearing. It isn’t compulsory however the Family Court takes a dim view of those who don’t try.
What is a Section 60I certificate?
This is a certificate that’s issued by your mediator (family dispute resolution practitioner) when a family mediation hasn’t been successful. There are categories of this certificate that outline why it has been issued. This certificate can be submitted to the Family Court to support a hearing and the judge will likely consider the reason for failure when making their decisions
How long does a mediation session take?
At Resolutions Australia we conduct a 60-90 minute intake session individually with each party. The mediation session then takes place. It can last up to four hours. More time is available if required.
Can I bring a lawyer to mediation?
Absolutely you can just so long as the other party is in agreement. Importantly, if lawyers attend they are there to offer you their advice. They are not there to speak for you or engage in any mediation. The two parent parties mediate and if advice is needed a short private session with your lawyer is possible.
Is family mediation legally binding in Australia?
Family mediation isn’t legally binding however once completed your agreement can be submitted by your lawyer to the Family Court and it will form the basis of a court order that is then legally binding. This doesn’t need to be done if the agreement is working well.
Again, another consideration to discuss with your lawyer.
What if the other party refuses mediation?
If the other party doesn’t accept an invitation to mediate then your family mediator will issue you with a section 60i certificate that reflects this. If matters then proceed to the Family Court then the judge will likely consider the refusal in their decision making and/or awarding of costs.
