The Role of Family Mediation in Family Law

parents fighting

Family law and mediation is an emotional and stressful area of the law. In cases of divorce and separation, all parties are likely to experience emotions such as grief, anger, pain and a sense of loss. This is especially true when there are children involved and custody is an issue.

Ideally, couples are able to resolve their differences long enough to meet mutually agreeable arrangements when it comes to children and divorce settlements. A process of mediation is common to help people work through these issues. When disputes cannot be solved, couples may need to go through a more formal dispute resolution process. In all cases, it is preferable that matters do not need to be escalated to family court.

What is Family Mediation?

Family mediation is a broad term used to describe the process of working through your issues as a couple, often with a neutral third party. It can be used for disputes between couples and parents, or disputes that involve extended family members as well.

The aim of mediation is to avoid the matter going to court. The family law system encourages separated families to come to their own arrangements in caring for their children. Court processes are often long, stressful and expensive. They can also be traumatising for children who don’t understand what is going on. Ideally, parents should always aim to work out their issues in a friendly and informal setting before escalating.

Some of the financial and parenting matters commonly addressed during mediation include:

  • Division of assets and liabilities – this can include the family home, investments, share portfolios, cars and other belongings, and money.
  • Long term planning for your children – how your child’s welfare will be managed and big decisions around education, healthcare and more.
  • Cooperative parenting arrangements – who will look after your child, for how often, and in which home.
  • Financial support – if one partner is financially dependent on the other, they may be entitled to financial support on an ongoing basis.

Mediation processes can take a long time, depending on the complexity of the case and the formality of the process. Some parents can reach consensus on issues around children in a matter of days. In other cases, mediation can be drawn out by conflict and an inability to compromise.

Although mediation can be stressful, it is best to work to find solutions to your problems in this setting rather than involving the court. This way, you maintain control of your decisions and your options, without having a judge impose their decision on you and your children. Even if you feel that you and your partner have reached a point where you cannot communicate, you can work with a professional to reach consensus together.

What is Family Dispute Resolution?

Family Dispute Resolution is a formal mediation process that is done by registered practitioners. It is compulsory under Australian family law for separated parents to attempt Family Dispute Resolution before applying to a family law court for parenting orders.

The objective of this process is to help parents make plans and arrangements for the care and parenting of their children. This can include how often a child will spend time with each parent, who is responsible for paying for elements of that child’s care, and how will the parents manage changes in circumstances over time.

Family Dispute Resolution focuses on the needs of the child, rather than the desires of the adults. It prioritises the mental and physical wellbeing of children, who don’t usually have a say in the decisions of their parents. Mediators are neutral and objective, advocating for the needs of the child rather than for any adult.

Although Family Dispute Resolution is compulsory for separating parents, there are exceptions. These include circumstances where one party is violent or abusive, where there are urgent issues that require court intervention, where a party has shown disregard for a court order (for example, breaching an AVO) or when a party is unable to participate, such as when they have left the country.

What Happens when Meditation is Unsuccessful?

If the Family Dispute Resolution process is not successful for whatever reason, an accredited practitioner can issue a certificate to allow an application to be made to a family law court. The certificate is called a Section 60I. It will testify either than attempts were made to resolve the dispute but that they were ultimately unsuccessful, or that one or both parties did not make a genuine attempt to resolve the dispute and court is therefore necessary.

Ultimately, it is in the interests of everyone that mediation works and that families do not need to attend family court. Resolving differences outside of court saves time, money and lots of stress and heartbreak.

If you do need to go to court, make sure you work with an experienced and compassionate family lawyer. They will work with you to understand your options, work through the process of the family court, and handle your case with sensitivity and care.