Mediation
Congratulations for considering mediation as the efficient, cost effective and self-determined way of resolving your family law dispute!
What is mediation?
Put simply, mediation is a process through which a structured negotiation between two parties is facilitated by an independent person, the mediator, who facilitates the discussions and negotiations with the goal of resolving the issues in dispute.
Mediation is a private forum in which you have the opportunity to determine your outcome without giving that decision making power to a Judge in which case neither of you may be happy with the outcome. Mediation is a confidential process and the negotiation is controlled by you and facilitated by me as an intermediary in those negotiations.
It gives you the opportunity to reach a legally binding and enforceable agreement with your former spouse and in many cases this enables you to move on with your life with the respect you previously had for each other intact. This is particularly important when children are involved where for their sake you are required to co-parent for many years to come.
Do I have to be in the same room as my former partner?
The short answer is no. A common structure used in mediation is a “shuttle”, meaning that the mediator may start with all participants in the room for an introduction but will quickly separate the parties (and lawyers if lawyers are involved) into separate rooms. The mediator then goes between the two rooms to facilitate the negotiation.
If you and your former partner are amicable and comfortable with talking to each other directly, but just need some help guiding and structuring your negotiations, a face to face our mediation services with private sessions may work best for you.
If you are not comfortable seeing or speaking directly to the other party for whatever reason, you simply need to advise me beforehand and those arrangements can be made.
What are the benefits of reaching a negotiated agreement through mediation?
Many, and avoiding going to Court is one of them. In my years of court experience dealing with separating partners and families I have seen first-hand the impact of an adversarial approach to finalising a matter. It is widely accepted that when it comes to resolving family law matters, resorting to the family court system should be the last resort and somewhat ironically, in most cases the Judge will order that parties attempt to resolve their matter through mediation prior to listing a matter of a hearing.
Another advantage of reaching a negotiated agreement is to reduce or eliminate the uncertainties associated with the court process. I often highlight to the following passage from an appeal judgment as a useful reminder of the risks and limitations of our court system and the benefits to parties of finding their own solution to their problem:
It is often impossible to predict the outcome of litigation with a high degree of confidence. Resolving matter outside of court, through the mediation process, is the most effective way of ensuring your voice is heard and views are considered.
Disagreements on the law occur even in the High Court. An apparently strong case can be lost if evidence is not accepted, and it is often difficult to forecast how a witness will act in the witness box.
Many steps in the curial process involve value judgments, discretionary decisions and other subjective determinations which are inherently unpredictable. Even well organised, efficient courts cannot routinely produce quick decisions, and appeals further delay finality.
Factors personal to a client and any inequality between the client and other parties to the dispute are also potentially material.
Why avoid litigation?
Litigation is highly stressful for most people and notoriously expensive. An obligation on a litigant to pay the costs of another party in addition to his or her own costs can be financially ruinous.
Further, time spent by parties and witnesses in connection with litigation cannot be devoted to other, productive activities. Consideration of a range of competing factors such as these can reasonably lead rational people to different conclusions concerning the best course to follow.
Other reasons why you should consider attempting to resolve your matter through mediation rather than a court process include:
- Cost: Assuming both have legal representation and depending on the complexity of the situation, it is not unusual for parties to incur legal costs ranging between $50,000 to $100,000 to take a dispute to trial.
- Time consuming: From the time of filing an initiating application an applicant could expect to spend at least 18 months to 2 years in the Federal Circuit Court or longer in the Family Court of Australia.
- Emotionally draining: Litigation is stressful. Never have I met a person who has been a party in the family court system and said that they felt that it was a fulfilling and enjoyable experience.
- Disappointing in terms of outcomes: Parties are often left disappointed with the court process. It may not address their agendas. The parties are subjected to the idiosyncrasies of the trial judge, who may not deliver a satisfactory judgment compared to the efforts poured into getting the case to trial. The parties are left to ponder appealing the decision at further cost and delay and there is a risk for the unsuccessful litigant of having to meet a costs order.
- Lacking in control over the outcome: The court process serves the purpose where the parties cannot come to an agreement for whatever reasons. The judge then steps in to make a decision for the parties.
- Delay: Parties getting on with their lives and can have long lasting detrimental effects on the parties;
- Destructive: In terms of preserving and maintaining a co-parenting arrangement in the future.
What does mediation cost?
Our fees for facilitating a mediation are charged at the rate of $2,420 (incl GST) per half day (4 hours) or alternatively $3,630 (incl GST) per full day (8 hours). If the mediation exceeds the fixed time, then each additional hour shall be charged at $350 (incl GST).
As a guide, a mediation dealing only with parenting matters or property division may only require a half day, however if you wish to resolve parenting arrangements and property settlement a full day is recommended.
Can I go to court if we don’t reach a settlement?
If your matter relates to property settlement and does not relate to children, in the event that agreement cannot be reached at or after the mediation then nothing prevents you from commencing proceedings in the family law system.
If your matter relates to parenting arrangements for your children, with the exception of some very limited circumstances, you cannot commence proceedings unless you have been issued with a certificate by a Family Dispute Resolution Practitioner (Section 60I Certificate) following a mediation process.
Our Fraser Murray conducts mediations both as a Nationally Accredited Mediator and as a Registered Family Dispute Resolution Practitioner. Fraser can issue certificates pursuant to Section 60I as required.
More information?
See more information about Fraser Murray here.
Or visit our Life Law Mediations website here.
To book in for your mediation service click below for our online calendar, or contact our office on 3343 9522 or 5446 1745 for more information and availability.
