Essentially mediation is a conference or a series of conferences or meetings generally with a facilitator called a mediator, or in the case of parenting disputes a Family Dispute Resolution Practitioner (who facilitates the negotiations between the parties) with a view to assisting them reach an agreement about all or as many of the issues in dispute.
Like all forms of alternate dispute resolution, mediation is cheaper and quicker than proceeding to Court.
Many people who use mediation find that as they were involved in the decision making and could express their views and concerns, they felt heard, had greater control over what was ultimately agreed upon and generally report feeling more satisfied with the outcome.
Some mediations are relatively straightforward. There may be relatively straightforward assets owned by the couple which are more readily identified and can be valued, and the parties can work through reaching agreement about for example the distribution of those assets, or the care arrangements for their children. This can be done using organisations such as Relationships Australia, CatholicCare or Unifam.
For some couples, with more complicated assets such as trusts, underlying structures or tax issues, a great deal of propriety work might be required prior to embarking on mediation, so that there is:
- an agreement about what the assets of the relationship consist of;
- agreement on what the values of each of those assets is; and
- Identification of any taxation issues in connection or arising from those issues.
There may be more complex areas of law and a disagreement between each party’s legal team as to how that law should be applied in their respective client’s case.
In this type of matter, a more formal mediation may be appropriate, including sometimes briefing Counsel and making detailed submissions. The parties together retain as their mediator a legal practitioner such as a retired Family Court Judge, Senior Counsel or Queen’s Counsel with specific mediation skills.
The mediator will facilitate the negotiations and may at times, where requested, provide an evaluative assessment of each party’s case, relay offers between the parties, and help the parties continue to exchange offers and counter-offers and work towards resolving many if not all of the issues in dispute.
As the mediator is not in Court as a Judge, Orders cannot be made on the day but the parties can undertake to formalise the agreement reached in legally enforceable format.