Mediation in Family Law: Resolving Disputes Without Court

Article Kara Cook 06 September 2022

One of the most common questions clients ask when they separate is whether they will need to go to Court to finalise their divorce.  Understandably, costly and sometimes lengthy court proceedings on top of the stress and emotional upheaval of a separation is something they would prefer not to go through. Mediation and Family Dispute Resolution (FDR) offers couples an alternative way to resolve any disputes or conflict, and the opportunity to reach an agreement without the involvement of the Court.


How does mediation work in Family Law?

In mediation and Family Dispute Resolution (FDR), a separating couple work with an independent and accredited mediator /FDR practitioner to discuss their issues or points of conflict and reach an agreement themselves.

For couples who don't have children, mediation offers a chance to resolve disagreements over the division of their property and assets and allows each party the chance to voice their opinion and contribute to the decision over who gets what.

Mediation also works particularly well for couples with children and can be beneficial when trying to reach an agreement on issues such as where the children will live and how much time they will spend with each parent.  It can also be used to reach an agreement on decisions surrounding their child/children’s day-to-day life, such as schooling, medical care, holidays with each parent, religious up-bringing etc.

The fact that mediation can be used to facilitate an agreement quickly and effectively, without the emotional impact of Court proceedings on a family, means that Mediation and Family Dispute Resolution (FDR) has been made compulsory for all separating couples who have children.   The parties must prove that they have attempted to resolve their issues through FDR before they are able to refer their matter to the Court for hearing.


What happens in mediation?

When a mediation is booked in a family law matter, an individual Family Mediator will meet with both parties and their lawyers in the same room (unless there are safety concerns).  Each party will be given the chance to talk about what the issues are and what they hope to achieve from the mediation.  The mediator will then facilitate discussion and negotiation between the parties and their lawyers.  During the mediation session, each party will also have the chance to leave the session and consider options or discuss any issues or suggestions raised on the day in private with their lawyer, or with the mediator.

When an agreement is reached, the mediator can also help to determine how best to document the agreement and what further actions will be required of each party, including whether the documentation should be lodged with the Court.


What are the benefits of mediation?

The major benefit of resolving family law matters through mediation is the fact that the parties retain control of the decision making process and can be involved in the discussion. Through mediation they can negotiate an agreement that suits them both, rather than taking the matter to Court and having a decision imposed on them by a third party.  This is a significant advantage, particularly when children are involved, and why it is always preferred as a way of resolving issues.

Mediation is also a private process - as opposed to an open court room – and allows parties to resolve their issues and negotiate property settlements confidentially.  This is particularly relevant if there are family businesses or significant asset pools at stake for instance.  The details of any mediation remain confidential and are not disclosed, subject to certain exceptional circumstances, even if the matter ends up in Court in the future.

If you are in the process of separating and would like to discuss whether mediation would be appropriate in your case, contact our experienced family law team for advice on ph: 02 8556 0130.