Family law mediation is a dispute resolution method aimed at helping parties reach a mutual agreement. Bronwyn Gunning, Principal Solicitor and Accredited Family Law Specialist explains how to prepare.
Understand the process
- Mediation is a confidential process, which means neither party can refer to what is discussed in mediation in subsequent litigation. This is important so that both parties can engage in meaningful and frank discussions in an attempt to settle matters.
- A neutral mediator helps both parties reach a mutually acceptable agreement.
- Unlike court, the mediator does not make decisions—they facilitate communication and negotiation.
- Mediation can involve the parties themselves and the mediator only ; or can be lawyer inclusive whereby the parties, their respective legal representatives and the mediator participate.
- Typically in Family law matters, a Mediation is held prior to the commencement of proceedings in an attempt to settle the matter without resort to litigation and as part of the mandatory pre-action procedures set out pursuant to the Federal Circuit and Family Court Australia (Family Law) Rules 2021. However Mediation can also take place during litigation and typically prior to the parties moving towards the final Trial phase of litigation.
- In relation to Parenting matters, a specific form of mediation called Family Dispute Resolution is mandatory prior to either party being able to commence proceedings in relation to Parenting matters, unless certain exceptions apply such as urgency. If the mediation is unsuccessful or either or both parties refuse to participate in mediation or the mediator deems the matter unsuitable for mediation (for example, an intervention order is in place), a section 60 I certificate will be issued by the Family Dispute Resolution Practitioner, which is required before Parenting proceedings can be commenced by either party.
Clarify your goals
- Know what you want to achieve (e.g., financial settlement, interim and / or long term care arrangements for children of the relationship etc ).
- Identify and discuss the approach/strategy to be adopted with your legal practitioners in advance of the mediation and be guided by your legal practitioners during the course of the mediation.
Gather all relevant documents and exchange in advance
Collect all relevant records and documents and exchange with the other party well in advance of the mediation so by the time of the Mediation, all relevant facts and proofs are known by both parties. This means, for example with respect to Property matters, that the pool of assets and liabilities available for distribution between the parties, is known and can be easily set out and identified in the early stages of the Mediation. If valuations by single expert valuers are required with respect to, for example real estate, make sure the real estate valuations are received well in advance of the Mediation.
This is so the parties can make the most of the mediator’s and each other’s time throughout the course of the Mediation and the entire day is not just spent establishing the pool of assets and liabilities.
Know the facts
- You/your lawyer should be prepared to explain your side clearly and concisely.
- Avoid emotional exaggeration; stick to facts and timelines.
Consider the other side’s perspective
- Try to understand their interests and what they might want.
- This helps in crafting creative, win-win solutions.
Consult with a Lawyer in advance, during or after a mediation (if mediation is not lawyer inclusive)
A Family lawyer can help you understand your legal position and help you formulate your position prior to any mediation. Further, your lawyer can review any proposed agreements, prior to your executing any documents to legally finalise any in principle agreement reached at mediation.
Practice calm communication
- Mediation works best when parties are respectful and cooperative, even in conflict.
- Rehearse staying calm and focused, even if emotions run high.
What to expect during mediation
1. Opening Statements
- The mediator introduces the process.
- Each party may make a brief statement about their position.
2. Joint or Separate Sessions
- You may meet together or in separate rooms (shuttle mediation).
- The mediator moves between parties if you're not in the same room.
3. Negotiation
- The mediator helps both sides identify issues and explore solutions.
- Offers may go back and forth several times.
4. Confidentiality
- Everything discussed is confidential unless both parties agree to share it.
5. Resolution or Not
- If an agreement is reached, it’s usually written up and signed either the same day or in the aftermath of mediation i.e. during the weeks that follow, if lawyers are present throughout the mediation. If you have attended mediation without a lawyer and have struck an in-principle agreement – it is important that you not sign any documents on that day but obtain legal advice in relation to the proposed agreement, before any documents finalising any agreement are signed.
- If resolution is not achieved at mediation, the case may move forward to litigation.
Learn more about our family law mediation services.
