Mediation is a commonly used alternative dispute resolution process to resolve parenting and financial proceedings out of court and avoid the time, cost and stress associated with proceedings.
As we often represent clients at mediations, we have set out below some of the most asked questions about the mediation process.
What is the purpose of mediation?
The purpose of mediation generally is to resolve a matter, have control over the outcome and save the time, cost, risk and stress associated with litigating a matter to a final hearing in the family law courts.
The Family Law Act 1975 gives Judges a wide discretion when determining family law matters. This means it is often difficult to advise clients on potential outcomes should they litigate in court. A percentage range of entitlements (being a client’s best day and worst day in Court) is usually always provided to clients when we give legal advice about property settlement. In our view, the greatest advantage of mediation is to remove the uncertainty of outcomes in a highly discretionary court system.
Mediations are not the forum to argue legal positions, even though this will be relevant to the advice each party receives from their lawyer during the mediation. The purpose of a mediation is to pragmatically and commercially find a resolution in the realm of what would be a possible outcome at court. Settlement at mediation will depend upon whether each party is prepared to compromise their position and expectations, as ultimately matters settle when the parties approach mediation commercially and sensibly with an intention to reach a compromised agreement, rather than continue to press a particular legal position.
Who will be the mediator and what is their role?
Mediators are usually retired Judges or experienced barristers or lawyers with appropriate family law experience and qualifications.
The mediator’s role during a mediation is to:
- be impartial and independent;
- facilitate negotiations between the parties;
- ensure a level playing field;
- encourage both parties to compromise to resolve their matter; and
- provide options to resolve the matter.
What happens on the day?
A mediation will usually take place over one whole day and each party will have their own legal representatives present.
The mediator will meet separately with each party at the commencement of the mediation, or in the days leading up to the mediation, for intake sessions where they introduce themselves and explain the process for the day.
If the parties are legally represented, the mediator will have a meeting between the lawyers to discuss any issues that can be resolved at the outset of the mediation (i.e. balance sheet items), the parameters of any settlement (for instance, who will be keeping the former matrimonial home) and which party will make the first offer of settlement.
Negotiations will start and continue throughout the day until an agreement is reached, or until there is a stalemate that can’t be overcome such that there is no prospect of the matter settling on the day (which can happen, but in our experience, mediations are usually highly successful in resolving matters).
Typically, mediations do not take place with parties in the same room together and they are kept separate throughout the course of the day. This enables the mediator to act as a shuttle negotiator between respective parties and their lawyers, and it allows the parties to focus on the commercial aspect of the dispute rather than the emotion of the day.
As mediations can last well into the evening, we recommend that you make arrangements for children to be collected from school and looked after on the night of the mediation.
Will the mediator provide legal advice?
A mediator will not provide the parties with legal advice during the mediation, although they may express their view about potential legal outcomes if asked to.
Some retired Judges who are mediator’s can deliver a “quasi judgment” at the end of the mediation, but such a judgment will not be binding on the parties and this will only happen if the mediator is willing to do so and both parties agree to it.
Can I bring a support person to the mediation?
Mediators will usually allow a party to bring a support person to the mediation, although that support person will be asked to sign a confidentiality agreement.
It is important that any support person that attends the mediation is helpful to the party trying to resolve their matter (as opposed to pushing their own agenda or having unrealistic expectations of a settlement, in which case, the mediator may ask them to leave).
Can what I say in a mediation be used in Court?
The mediation process is entirely confidential and without prejudice. This means that offers made throughout the course of a mediation cannot later be used or disclosed in proceedings between the parties. This enables parties to compromise their positions without the fear of having this used against them should their matter not resolve at mediation.
What happens if we reach an agreement at the mediation?
At the conclusion of the mediation, if an agreement is reached, usually a “heads of agreement” will be drafted by one of the party’s lawyers and signed by both parties. The parties’ lawyers will then, subsequent to the mediation, draft the appropriate settlement documents (financial agreement or consent orders) to effect the terms of the settlement in a legally binding way.
What happens if we don’t reach an agreement at mediation?
“If you don’t succeed, try again” – this being the family law courts’ approach to mediation.
The court is resolution focused and it is common that parties are ordered to attend two or more mediations before their matter is listed for trial. Your lawyer will be able to provide you with advice as to the pathway through court, whether that be to further dispute resolution or a compliance and readiness hearing, after your mediation, should your matter not have settled.
If you require assistance attending or preparing your matter for mediation, please do not hesitate to contact Niki Schomberg or one of our experienced family lawyers.