What is Mediation and why should I give it a go?
In 9/10 cases, Mediation is the best and most appropriate way to resolve your family law issues quickly and cost effectively.
Getting divorced in Australia is only one section of a big legal puzzle. Other pieces include property settlement, parenting agreements, child support and spousal maintenance.
Each piece on its own can become drawn out and expensive, financially and emotionally.
The family and federal circuit court system is currently experiencing extreme delays.
Financial or parenting applications filed today in the Brisbane Registry are unlikely to receive a final outcome until 2020 or later. A backlog is causing delays of up to three years. It is almost impossible to have your matter heard by a judge on an urgent interim basis, except for the most urgent parenting or financial matters.
The inability of the family courts to provide timely access to justice is causing people to give up hope and settle for orders that are not in their interests or the interests of their children. Resourcing of the family law system is in a state of crisis.
Part of the problem is that many matters before the family law courts do not belong there. These matters will settle well prior to a final hearing but not prior to spending many months or years in litigation, at a high financial and emotional cost.
The Family courts system is no longer being treated as a last resort.
What is Mediation & how does it work?
Whilst some matters need to be litigated in the family courts because of the nature of the intractable dispute, most matters are amiable to alternate dispute resolution through a process called mediation.
In a parenting matter, mediation is a prerequisite before a court application can be filed (except where certain exceptions apply).
In a property matter, the courts order parties to attempt to settle their issues through mediation, prior to the matter being set down for Trial.
You can make life easier by participating in a mediation, without going to Court.
A mediator is a neutral party. the Mediator’s job is to assist each of you in the negotiation process by meeting with both of you, identifying the issues, the common ground and then exploring those issues.
At the mediation, the you will each meet at the same location or sometimes you may be separated into different rooms. Over the course of the day, the mediator will speak to each of you and your solicitor (if present) about your respective positions and interests. Where invited to do so, the Mediator will express a view based on their experience and this may include reality testing a party’s position if it is not an order which would realistically be made by a Court.
The goal is to end the day with a compromise agreement that you each can live with that resolves all or some of the issues in dispute.
The agreement, in a parenting matter, when signed becomes a Parenting Plan.
If you have reached an agreement with your former partner at the mediation and you seek to make your (property settlement or parenting) agreement legally binding, you will need to seek legal advice in order to have you agreement made into a Consent Order, which can then be rubber stamped by the court and it them becomes legally binding.
The benefits of Mediation
Whilst it is normal to want your day in court, there are many good reasons to give mediation a go, even if a resolution seems unlikely, if only to narrow the issues in dispute:
- Mediation resolves your issues much quicker than through the family law courts;
As has been reiterated the delays of the family court system are untenable at present, with some matters taking 3 years before reaching a trial stage.
- Mediation ensures a certain and predictable resolution;
No one ever ‘wins’ in the family court system. There are however many losers, due to the financial and emotional costs associated with going to court. Further, what you believe you are entitled to and what you are actually entitled to do not necessarily align. The outcome is handed to you by a third party, not chosen by you or the other party and often parties walk away with an outcome they are not happy with. A successful mediation will result in an agreement that everyone can live with which eliminates the uncertainty of a trial outcome. Importantly, trials can also be appealed which takes time and further uncertainty in the outcome of your case. Mediated agreements are much more difficult to challenge and overturn.
- Mediation Saves money
Trials are expensive. Successful mediation either narrows the issues and therefore the time spent at trial, or eliminates the need for a trial completely. This money can be better spent on your children or your post separation re-establishment expenses.
Mediation – a win win solution
Do you want to have control over your decision? Do you want a quicker, less costly outcome that you choose and have ownership of?
Mediation is the way to go.
If you are wanting more information about the process of mediation or to initiate the process and book your mediation intake appointment, please don’t hesitate to contact us.