What is mediation?

Mediation is a process where an independent third party (the mediator) helps people in conflict to discuss and negotiate their matter and to explore options for resolution.

Mediation is an alternative to Court/ litigation and can happen at any time before, during or even after Court proceedings to try to help parties reach an agreement.

Mediation is common with family law matters to assist separated parties mediate in relation to financial and parenting issues and is a requirement for some family law matters prior to parties being able to seek relief from the Court.

What is the benefit of mediation?

Mediation gives the parties the opportunity to be involved in the decision making process, to brainstorm and implement ideas and solutions that work for them and their family rather than having a Judge impose a decision.

Mediation is a less formal process and is faster and less expensive than Court.

Mediation is more flexible and can cover more issues than Court.

Mediation gives both parties the chance to ‘have their say’ and hear the other person’s point of view.

What is the role of the mediator?

A mediator is impartial, neutral and cannot take sides. The mediator is not a Judge and is not there to make a decision on behalf of the parties or to provide legal advice. The role of the mediator is to facilitate a discussion between the parties, to help them communicate in a forward-thinking way, to identify possible areas of agreement and to try to come up with possible solutions for the matter. In parenting mediations, the mediator will help the parties to focus on the children and what is in their best interests.

Is mediation confidential?

Yes- anything that is said or offered in mediation is confidential and cannot be used in subsequent court proceedings. This means both parties can negotiate freely without being worried that this will be used against them down the track.

When is mediation appropriate?

Mediation is appropriate for parties that have reached a stale-mate in their discussions with each other or through their legal representatives and where they would benefit from the assistance of the mediator and the mediation process. Mediation is appropriate where both parties want to avoid lengthy and expensive Court proceedings and where they would like to have control of and participate in the decision making process.

Mediation can be really helpful for parties who are already in Court but want to explore other options for resolving their matter.

When is mediation not appropriate?

Mediation is not always appropriate and the mediator will make an assessment of the suitability for mediation, including any history of family violence, an imbalance of power, where some parties will not agree to participate or where a Court Order is required (i.e. to make one party do something or stop doing something that they won’t agree to).

Is mediation compulsory?
For most family law matters parties are now required to attend mediation prior to commencing court proceedings. This now applies to financial and parenting matters, unless an exemption applies. Exemptions apply in cases where there has been family violence and mediation would not be appropriate or where there is urgency to the matter which requires Court intervention.

What kind of mediations are there?

Mediation usually occurs face to face with all parties in the one room. However, where necessary (due to COVID measures/ practical considerations/ the location of the parties) mediation can also occur electronically (via Microsoft Teams or Zoom) or otherwise by phone. Mediation can also occur as a ‘shuttle’ conference where it is not appropriate for both parties to see/ hear each other.

Does Aubrey Brown do mediation?

Yes- Kate O’Grady, our family law team leader is a Nationally Accredited Mediator and also an Accredited Family Dispute Resolution Practitioner (FDRP) meaning that she is able to mediate family law matters relating to property/ financial issues and also parenting. As an FDRP Kate is able to draft Parenting Plans and issue s60(I) Certificates under the Family Law Act 1975 (Cth) if required.

We also have other lawyers on the Aubrey Brown team who are accredited mediators and can assist with different types of disputes.

If you have any questions about mediation or Family Dispute Resolution, including regarding availability, process and/ or fees please contact a member of our friendly team on (02) 4350 3333.

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