Family disputes are rarely straightforward. Often, it is painful and taxing, both financially and psychologically. Having this dispute taken to court will only add to the burden of the parties involved because court proceedings are known to be expensive and time-consuming, not to mention emotionally draining.
Here is where family mediation in Melbourne can help lighten your burden and speed up the process of settling your family dispute. Unlike court proceedings, it ensures a fair and mutually agreed outcome for both parties.
However, it is best to clearly understand how the family mediation process works before opting for this dispute resolution method, regardless of whether it is a better option than going through court. Mediation may not be the best option in all situations – for example, domestic violence.
In this article, we will share what is family mediation and how this process works so that you can make a well-informed decision on whether to opt for this dispute resolution method.
What is family mediation?
Mediation is a type of alternative dispute resolution that offers parties in a conflict an option to resolve their issues with the help of a neutral third party.
The mediation process can take place either in person in a neutral environment, in separate rooms with the mediator travelling between the two parties – also known as shuttle mediation – or over a conference call.
Family mediation, in particular, is a legal requirement under the Australian Family Law for separated spouses to undergo before they formally apply to the court for a resolution. However, as mentioned, there are cases where parties can skip family mediation, which include:
- When there is family violence and/or child abuse.
- When parties involved are formalising consent orders.
- When you are responding to an application from the court.
What does a family mediator do?
A family mediator is there to only assist both parties in determining their issues, guiding them in finding a common ground, and working out a mutually agreed upon resolution. They are independent professionals, trained in formal negotiation and arbitration methods.
It is best to take note that a mediator is not allowed to decide or provide a resolution for the parties involved, nor can they offer legal advice. Their job is to merely facilitate the resolution process through encouragement and thorough, unbiased discussion.
Nevertheless, if you do require legal advice during the family mediation process, you may request a family dispute lawyer to accompany you. However, this is subject to the mediator’s discretion, so it is best to consult them about wanting a lawyer beforehand.
How long does a family mediation process take?
There is no fixed length of time for family mediation to be concluded – sometimes it may only take a few hours. It all depends on the problems and how complex they are.
Long-standing issues, such as personal or family finance, could be a point of concern and may prolong the mediation proceedings. However, if there seems to be no end to the alternative dispute resolution process, the family mediator may suggest going to court to settle your problems.
How does the family mediation process work?
Each case is different and a mediator may tailor the process to suit the parties’ situation, however, generally, the family mediation process will involve the following steps:
Preparation
Before beginning the family mediation session, the family mediator will guide you through the preparations that you should undertake such as putting together relevant documents – financial statements, mutual wills, and more – and signing a family mediation agreement. The latter outlines the roles and responsibilities of the family mediator and the expectations of the parties involved, ensuring the mediation session remains confidential.
The family mediator may also meet with you and your ex-spouse – either together or separately – to explain the mediation process. At this point, you may voice out any concerns you may have about the family mediation session to the mediator.
Introduction
On the day of your family mediation, the mediator will meet both parties – and their lawyers – and give an opening statement. This introductory statement includes a brief outline of the roles of the mediator and participants, the mediation process, and ground rules.
Statement of the problem
Then, the mediator will ask each party to state their opening statement which briefly describes why they agreed to participate in the family mediation and what they hope to achieve. At the end of this introduction session, all participants of the mediation session should have a better understanding of the issues.
Joint discussion
Once the family mediation session is underway, the mediator will discuss the problems mentioned by each party through open-ended questions. This way, the participants may be able to get a better understanding of the problems and also obtain additional information, if any. It is at this point of the family mediation session that the mediator will be able to figure out what issues can be addressed first.
Private discussion
During the family mediation, parties will be allowed to break out into private sessions with their lawyer, as well as the family mediator. This private session will allow them to reflect upon what has been said in the joint session and discuss their opinions or options they might wish to put forward as a means of resolving the issue.
Negotiation
Once each party has been given the opportunity to reflect and come up with options for resolution, it is time to negotiate. The family mediator will help facilitate both parties to identify and explore their options for an agreement together.
Agreement
If the event of an agreement is reached, the family mediator will then assist the parties in documenting their agreement, as well as what further actions will be required of each party. Once the agreement is finalised – with the assistance of the parties’ lawyers – and signed, it is legally binding.
If there are legal proceedings already taking place, the agreement can be lodged with the court and the proceedings will end, thus further court attendance will be unnecessary.
What are the benefits of family mediation?
To further aid you in determining if you should opt for family mediation, we have listed down several benefits that this dispute resolution method offers to families:
- Efficient – depending on the issue and the parties involved, a family dispute can usually be settled within a single session.
- Safeguards relationships – family mediation is focused on reaching a mutually agreed resolution unlike years of litigation that may favour one party over another, and potentially ruin relationships.
- Informal – unlike court procedure, which may seem intimidating to some, family mediation is an informal process that does not require lawyer representation. However, a lawyer is welcome during the session if you feel more comfortable having them present.
- Flexible – parties in a family mediation have more say in the negotiations and more control over the results, unlike a lawsuit.
- Affordable – the costs of family mediation are significantly lower than litigation as you will not be required to pay legal fees that may be expensive, especially if it is a prolonged court proceeding.
- Confidential – unlike court cases, which are public, mediation is usually confidential. This means information revealed during this family mediation session cannot be used later in a trial or judicial proceeding.
Engage a family lawyer for legal assistance
As illustrated, family mediation could be a great option if you wish to resolve issues surrounding your separation smoothly. Sometimes, family mediation can also promote reconciliation. Undoubtedly, family mediation is usually a very helpful step before heading to court.
Either way, if you are looking to start family mediation, it is best to hire an experienced family lawyer to better understand your rights and responsibilities, as well as the rights of your children. Family lawyers can help test out proposals, work through legal details, and assist to identify areas of inconsistency to ensure you can negotiate the most favourable outcome for yourself.