When should you consider mediation when separating?

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Spinning plates

The breakdown of a relationship can be stressful. There may be complications of jointly owned businesses or property. Possibly there are children involved, either from this or a previous relationship. The parties involved may well feel overwhelmed as they deal with the unknowns of new circumstances, while still trying to maintain composure at work or with children. This is when you should consider mediation as a resource. 

Isn’t mediation just counselling?

Counselling is designed to resolve issues so that the relationship may be reinstated, or if not, that the separation or divorce is at least amicable.

While mediation also involves resolving differences, it is more about finding practical solutions that both parties can agree upon, moving forward. It will be more focussed on issues such as property settlement, and very largely, about parenting arrangements.

Is mediation required?

When two parties cannot resolve their differences amicably, it may be that they independently pursue a solution by litigation – going to court. This can be time consuming, costly, and potentially stressful.

Mediation is seen as a way of encouraging couples to find their own solution first. Indeed, where there are issues of either creating or modifying parenting arrangements, the Family Court requires that couples pursue mediation. It is not an option, but a requirement. That said, parties who attend mediation will have a far greater chance of achieving a good outcome if they start with the mindset of positivity, rather than attending only because they have been forced to.

There are some exceptions to this requirement of the Family Court:

  • Where a couple is formalising an agreement through Consent Orders – since, by definition, they have already reached their own agreement
  • In cases where domestic violence or child abuse are factors
  • A party is unable to attend effectively, perhaps due to incapacity or geographical location
  • A party has contravened or disregarded Court Orders in the preceding 12 months

How does it work?

Before delving into what mediation is, let’s be clear on what it isn’t:

  • Mediation is not about winning or losing
  • Mediation is not aimed at deciding who is right
  • Mediation is not about taking sides

Mediators involved in Family Dispute Resolution (FDR) are highly trained, experienced, and totally committed to being independent and confidential arbiters. They take on board all the facts and circumstances of the couple and act as facilitators to help both parties arrive at an agreed solution to the issue at hand.

Confidentiality is assured, unless issues of child abuse, crime, or threat to life and limb become known.

Parties may arrange to bring an appropriate support person, and if necessary, each party may occupy a separate room, with the mediator going to-and-fro between them.

Mediation may involve one session or several, the aim is for a solution, not a time limit.

If mediation concludes with a written agreement, this will then go to the Court as an application for Court Orders to that effect. Should mediation not be successful, a Section 601 Certificate will be created so that the Court is aware that mediation was attempted but provided no solution, and the certificate will outline the reasons. 

Key takeaway

Mediation with a trained and skilled professional can be an extremely effective and cost-efficient way for a couple to work through differences and arrive at a mutually agreed, formal resolution. This agreement can then be ratified by the Family Court, whereupon it will be legally binding on both parties.

Family Law – we listen and we help. It will be easier with sound legal advice from the experts. Owen Hodge Lawyers. We are here to help. If you have any questions about mediation, or about your Family Law case, please don’t hesitate to contact us on 1800 770 782 or via email at ohl@owenhodge.com.au

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