Mediating your way through a family law conflict can take many forms and there are many reasons why it’s worth considering.
In parenting cases, with some exceptions, it is compulsory to participate in a form of mediation known as ‘family dispute resolution’ or ‘FDR’. Prior to commencing court proceedings, you have to establish that you’ve either:
Participated in FDR; or
You’ve tried to participate in FDR but, say, the other person refused to participate; or
FDR is not appropriate for your matter, the most obvious reason for which is that there has been domestic violence in your relationship.
If your matter is in court, the court can order you to participate in mediation. There is also provision in property settlement cases for parties to attend what is called a ‘conciliation conference’. This is a form of mediation that is chaired by a Registrar from the Court, who assists the parties to resolve their matter between themselves.
Mediation can also take the form of a round table conference, say between you, your solicitor, your former partner, and their solicitor. If there are lots of issues to work through, and, for example, both parenting and property matters to discuss, you might have a few round table conferences, giving each party the opportunity to speak freely about issues of concern to them in a safe environment.
Mediation can also take place privately with the assistance of a qualified mediator, experienced in family law matters. Having a chair person can assist the parties in staying on track and focused on their agenda and can control the balance of the conference, to ensure everyone gets the same amount of airtime and that parties behave in a respectful manner towards each other.
Mediation, in whatever form it takes, has many advantages:-
It can speed things up considerably. If there are lots of things to discuss, as is often the case with parenting matters, or there’s lots of paperwork to exchange, as is often the case with a property settlement, all issues can be canvassed in one day, rather than issues being addressed piecemeal and via each party’s legal representatives over a lengthy period of time.
This might be the first real opportunity to have a conversation with your ex in a low conflict environment and you might find that you’re not as far apart from what you each hope to achieve, as you thought you were.
Each party has the advantage of having their solicitor with them, so you can break at any time and get advice from your lawyer as you need to. As well, good mediation lawyers are there to take away fuel from the fire and help each party find solutions that they can both live with, rather than to simply blindly fight for one party’s desired outcome. Both having a lawyer also means your on a level playing field.
If you reach an agreement, sometimes it can be drawn up by the party’s lawyers then and there and signed on the day. Certainly if it’s not done on the day, it can be done shortly afterwards. You can then lodge your agreement with the court and orders will be made in accordance with your agreement, giving you the same sort of legally binding document you’d get were you to have participated in a judicially determined final hearing.
You’ll find mediation is a far cheaper and less time consuming option than going to court. Court proceedings can take up to two or three years. A mediation can be scheduled to take place in a matter of days, depending on each party’s availability and, sometimes, on the accessibility of documentation that are required to enable fruitful discussions to take place.
Agreements reached can and will often cater to a far broader range of issues and can provide far more creative and client specific solutions to problems than court imposed orders will.
It is our experience that parties are far more likely to comply with a court order they’ve agreed to be bound by than one imposed on them by a judge, who has only a limited opportunity to get to know the parties and to understand things that are important to them.
If you reach your own agreement, you’re in control of what you’re agreeing to. Giving that responsibility to a judge means that all control is removed.
We often tell clients: A judge will not necessarily make the right decision for you or a decision that you are happy with, and you should not make the assumption that this will be what happens. A judge is there to make a decision because you and your ex partner have not been able to. He or she will always do their best to make decisions that are fair and equitable and, in the case of children, in the children’s best interests, but you know your family better than anyone, and you are in the best position to know what is best for your family.
If you’d like to give mediation some consideration and you need a lawyer that genuinely believes in this process, call Kate Austin Family Lawyers for a chat about the best way to proceed.
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