Family mediation (also known as family dispute resolution) is a service that helps families resolve disputes outside of the courtroom. Parties come together in a conference and work through their concerns in the presence of a neutral third party, known as a mediator.
This article answers the most common questions lawyers get regarding family mediation, to help you better understand what to expect throughout the process.
What is the purpose of mediation?
The aim of mediation is assisting parties to reach an agreement in their best interests, and the best interests of any children involved, in the absence of the court (which can be stressful, time-consuming and costly). It may include dealing with conflicts such as financial arrangements, child support and property settlement.
Is it legally binding?
The decisions made during family dispute resolution are not legally binding. However, if you reach an agreement, you and the other party can choose whether you want to sign to make it legally enforceable or not. A lawyer will help you to do this.
Is it compulsory?
It depends on your specific situation. In some cases, such as parenting matters, it is compulsory to attempt family dispute resolution before applying to the court. However, certain situations are exempt from mediation, such as those involving child abuse or violence. If you decide you want to get a parenting order from the court, you will first need to get a Family Dispute Resolution Certificate.
Who provides it?
Mediation is offered by a range of organisations, namely private practitioners (who generally charge fees) and Community Justice Centres (who provide free services for those who qualify for legal aid). For more information you can access a local family mediation, or alternatively visit the Australian National Legal Aid website.
How much does it cost?
The cost of family mediation will vary depending on the provider, as private providers set their own rates. Public services generally offer one hour free and then may charge you extra based on your financial situation.
What is the family mediation process?
There isn’t a set structure for family mediation; your mediator may suggest an approach that best suits your situation. However, it does generally involve the following:
- Introduction and agreement upon ground rules and processes.
- Each party is given a chance to say what they believe the problem is.
- The mediator helps the parties discuss these problems.
- The mediator may speak one-on-one with each party, and/or give them time to speak to their lawyers or other people.
- If an agreement is reached, the mediator will ask whether the parties want it to be recorded.
You may want to speak with your chosen provider to learn more about what to expect from the process.
How do you make the most of mediation?
To use your time during mediation wisely, it is a good idea to aim for open, patient and clear communication with the other party. Rather than being accusatory, try to have a constructive approach. For example, rather than saying “You never return my phone calls!” it may be more helpful to say something like: “I feel upset when I don’t get a response from you. I would like to arrange a way to have my phone calls returned.”
Focusing on the core problems you want to address, rather than minor issues, may also help you to get the most out of your time with the mediator. Try to stay calm and neutral wherever possible; this includes trying to be understanding if the other party gets upset. Practice active listening, wait for your turn to speak, and ask follow up questions.
Is it confidential?
Yes, it is. What is spoken about cannot generally be used as evidence in court, unless it poses a serious risk to a person’s safety (e.g. if a mediator hears a threat to the safety of a child). However, the other party may be able to use information you have shared to find evidence later down the track if you end up going to court. If you are concerned about this, get legal advice before attending family mediation.