It is not uncommon for parents to be unable to reach agreement with respect to the care and living arrangements for their children after separation. Rather than going straight to court, it is important that the parties try and resolve their differences through mediation.
What is Mediation?
Mediation is a structured alternative to litigation. It involves having an objective and neutral third-party present to help assist the parties in identifying their differences and then working to resolve them.
It can take many forms and can occur with or without the assistance of solicitors. If both parents agree, it can take place with all parties in the same room. Or alternatively, it can occur in a shuttle format, where the parties are in separate rooms and the mediator moves back and forth between the two.
The mediator is there to act as a facilitator to ensure that the parties stay on track and the discussions and negotiations proceed as smoothly as possible. The mediator does not provide advice or favour either parent. The mediator is generally someone who has an understanding of the Family Law system.
What are the benefits of Mediation?
There are numerous benefits to choosing mediation. These include:
- It is quick – Court can often drag on for months or years. Mediation can often resolve issues in as little as one session;
- It is cheap – Mediation is significantly cheaper than Court, particularly when considering the costs involved in preparing documents and attending court;
- Mediation is not as formal and intimidating as Court can be. Mediation provides a more relaxed atmosphere and is voluntary, so you can choose to opt out at any time;
- Anything discussed at a mediation is confidential;
- It is flexible in that the parties have the freedom to structure the agreement in a way that best suits them, as opposed to having the Court set out the arrangements for them.
Requirement for Mediation
Under the Family Law Act, there is a requirement that a party make a genuine effort to resolve the matter by attending a family dispute resolution conference before commencing court proceedings, except in specific circumstances.
There is no requirement that the mediation be successful, only that you have attempted it. An attempt can include if the other party is invite to attend but refuses to do so or does not respond to the invitation.
If your attempt to mediate the matter is unsuccessful, you will be issued with a certificate that is valid for twelve (12) months that you can provide the Court if you initiate proceedings.
Exceptions to Mediation
The circumstances where you do not have to attend a meditation prior to commencing Court proceedings include:
- If you have an agreement with the other party;
- If there has been child abuse by one of the parties or there is a risk of child abuse if the Court does not intervene in the matter;
- There has been family violence by one of the parties or there is a risk of family violence;
- If the application is urgent; and/or
- It is not possible for at least one of the parties to participate in mediation effectively, for example if they have a disability or live in a remote area where no mediation service is available.
Mediation and family dispute resolution is a quick, cost effective alternative to Court proceedings and is often successful. Wherever possible, it should be your first port of call to resolve a parenting dispute.