22 Apr 2014 - Blog 

Mediation is often an effective process to deal with Family Law issues. In Family Law disputes, no-one wants to go to Court.  At Journey, we offer an alternative option of Mediation between the parties to settle disputes.

Mediation works with property and childrens’ issues though there are some disadvantages as well as advantages. This article is designed to explain the Mediation process and allow people to judge whether their case is suitable for Mediation.

In just about all Family Law cases, there are Court-sponsored Mediation opportunities. Almost certainly in any Court action there will be a Mediation or Conciliation Conference arranged.

Advantages of Mediation

Mediation can be quicker than going to Court. It can also be faster in getting an outcome and it is certainly less stressful than going to Court. The costs of a successful Mediation could be less than that of a Court process. As well, Mediation can result in an agreement with terms that a Court could not arrange but are more suitable to the participants.

All parties to a Family Law dispute are strongly recommended to consider Mediation as a process (though there are some prerequisites). In some areas, such as children’s matters, an attempt at Mediation is compulsory before commencing Court proceedings.

Disadvantages of Mediation

Whilst the costs can be lower than that of Court action, both parties must be committed to the process. If they are not, there is the danger that considerable moneys can be spent on a Mediation with no outcome. When that happens, the next step is to issue Court proceedings and the costs of the Mediation process are wasted. It is therefore important, before agreeing to a Mediation, to be satisfied that the other party is genuine in their desire to settle the matter.

Sometimes, a party to a dispute is aware their position is unreasonable. To avoid Court and to delay matters as long as possible, they will often agree to Mediation with no intention of accepting a reasonable outcome.

Further, if you have limited funds, a party should not expend all their available funds on a Mediation and then when it fails to provide an outcome, there are no funds available to take the matter to Court. In that situation, it is far better to issue Court proceedings and then go to Mediation under the umbrella of Court proceedings.


Advantage of Court-sponsored Mediation

Once Court proceedings have been instituted, the Court system will come into effect and the case is managed by that system kzcipy6. This will include processes that include Mediation and/or conciliation processes. Often this type of Mediation is the best. There are a number of reasons. Firstly, with the “threat” of Court proceedings, parties are more inclined to make a genuine effort to settle a matter. Secondly, if a party has been un-cooperative in the preliminary steps, the Court will take note of that and can impose sanctions on the recalcitrant party. Thirdly, if the other party is completely uncooperative, you still have the Court process to move forward to finalise your case.


Pre-requisites for Mediation

There are some factors that need to be considered before going to Mediation. Firstly, is the other party being cooperative and in the case of property matters, is the other party making full disclosure of their financial interests?

Secondly, if the likely outcome of Court action (or the Mediation), is that the other party will be in a significantly less advantageous position, the likelihood of a successful Mediation will be less.

There can be indicators whether the other party going to genuinely take part in the Mediation process. For example, have there been some preliminary negotiations and offers? Has the other party cooperated with the pre-Mediation steps, for instance, if the dispute is about property? Has the other party made full disclosure of their financial position, or, are they refusing to accept values (or get values) of assets like real estate? Have they been slow in responding to letters and requests? If they are not being cooperative at the pre-Mediation steps, they are unlikely to be cooperative at the Mediation and, unlikely to come to an agreement at a Mediation.

If there is doubt in either of these issues, consideration should be given to using the Court-sponsored Mediation options rather than waste money on a Mediation that is unlikely to succeed.


Costs of Mediation

Mediation can often cost as much as commencing Court proceedings. Your case needs to be prepared to present to the other party and the mediator. There will be costs for your legal advisor to prepare and attend. As well, each party normally pays half the costs of a mediator. A mediator will generally charge between $1500 to $5000 depending on their skills and seniority. You therefore need to budget anywhere from $3000 upwards for a Mediation.


How does a Mediation Work?

The actual Mediation process varies as different mediators use different processes. Some require a lot of information before the Mediation day and some require a “face-to-face” meeting with each party. It does not usually make much difference (except as to costs).

On the Mediation day, both parties attend and meet usually with their legal advisors. The parties are expected to sit in joint sessions with everyone and can also expect the mediator will see each party separately. The mediator will try and identify which issues are in contention and which ones are not; then they assist the parties in working towards a resolution. In many cases, the eventual agreement involves compromise by both parties and that needs to be understood.

If a party feels uncomfortable being in the same presence of the other party, the Mediation can proceed with each party being in separate rooms and the mediator talking to them separately through the process.

Once an agreement has been reached, it is normally reduced to a written form. In the Family Court system, the Lawyers would normally then prepare Consent Orders for subsequent signing by the parties.


What should I do?

When deciding on the Mediation process, you should consider the likely costs and possibility of success. Talk to your legal advisor about whether they think it is worthwhile. Our Lawyers practice exclusively in Family Law and have develop a sense whether a party is going to cooperate. Whilst they cannot guarantee an outcome, they can assist you in your decision.

If you are not sure the other party will cooperate, the alternative may be to issue proceedings and use the Court-sponsored Mediation process to resolve the issues. Remember, almost all Family Law cases are resolved through the process, including Mediation and conciliation. Very few cases even end up in a full Trial. Even the most stubborn person, faced with going to Court if they do not agree to a (reasonable) proposition, will usually accept the inevitability of the Court process and give in!






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