Steer Clear of Costly Mistakes in Family Law: Why Mediation Planning and Advice is a Must to Safeguard Resolution
Navigating separation following the breakdown of your relationship is often overwhelming. Many wonder about the potential costs (both financial and personal), the time it may take, and worry about the prospects of needing to go to Court.
You do not always need to attend Court to resolve your family law matter. There are effective alternatives available that can lead to successful resolutions. The Family Law Act 1975 (Cth) places significant emphasis on parents resolving their family dispute and separation via mediation and alternative dispute resolution methods. In fact, The Australian Institute of Family Studies (AIFS) in 2019 reported that 97% of separated parents resolved their parenting arrangements without going to Court.
In this blog we uncover the must have knowledge and foresight that helps to prepare for successful family law mediation.
What is Family Law Mediation?
Mediation involves a neutral third party called a mediator, facilitating negotiations to hopefully reach a mutually acceptable agreement. Through this process, areas of concern and those that are in dispute are identified, allowing both parties to prioritize and discuss them based on their relative importance so that both sides can be heard and meaningful negotiations can take place.
Mediation can provide a way for separating or divorced couples to address matters such as parenting arrangements and financial support for their children as well as the division of their assets or property settlement before resorting to Court.
It can also be a mandatory pre-filing requirement in parenting matters, with the Family Law Act 1975 (Cth) requiring parties to obtain a certificate indicating that a genuine effort to resolve the dispute by family dispute resolution has been attempted. Without this certificate and a valid exemption supported by an affidavit, the Court cannot accept your application and the matter cannot progress.
The Key to a Successful Mediation
Preparation and Knowledge: While Mediation is often an effective method to resolve family disputes, simply attending a mediation does not necessarily mean it will be successful.
To increase the chances and likelihood of successful negotiations, parties need to be prepared and have a clear understanding of the purpose of the mediation and the processes involved.
By attendees understanding their rights, entitlements, and legal obligations prior to attending mediation they are able to ensure that any agreements or offers made are just and equitable and reflective of what you are legally entitled to or what would be considered in the best interests of your children. Coming prepared and armed with knowledge can be the key to settling your dispute.
Understanding Legal Principles, Rights and Obligations
There is no one size fits all resolution when it comes to family law matters and disputes.
No two families are the same, which means resolutions need to be made in accordance with each family’s needs. To best understand how to address these needs, parties need to be aware of and have an understanding of legal principles, their rights and obligations.
The foundation of the mediation process should start with comprehensive grasp of the legal aspects, so that what is negotiated can be done so in an efficient manner, where dialogue stays focused on the core issues and what is agreed can be legally binding.
Documenting an Agreement after Mediation:
While mediation can pave the way for resolution and agreements, agreements reached at mediation are generally not legally binding until they are appropriately documented.
It can therefore be important that parties have a lawyer present at mediation to help prepare and shape agreements throughout the process, so that there is efficiency and accuracy in what is being agreed and what is documented for each party to approve and formalise either with a binding agreement or a submission to the Courts.
As experts in Family Law, we often assist throughout the entire process of mediation, including in session with mediators, the other party and their own lawyers and the results can be a win for both sides, particularly when agreements can be formalised and documented on the day, giving everyone more certainty.
The Importance of Choosing the Right Mediator:
Selecting the right mediator can be an important part of increasing the prospects of success of the mediation process.
Not all mediators are equal and sometimes selecting a specific mediator with certain a certain expertise that is relevant to the issues in dispute, can assist to improve prospects of resolving an agreement.
At Lagom Family Law, we have encountered instances where clients have engaged with mediators whose process did not meet legal requirements or the Mediator did not have the requisite expertise or which resulted in wasted time and money.
It is important to note that mediators cannot provide legal advice to parties because they must remain neutral. Therefore, investing early and obtaining independent and tailored advice and planning with a lawyer who represents you and is prioritising your own best interests is critical in ensuring the mediation has better prospects of being successful.
Lagom Law have an extensive network of recommended mediators to fit each individual family’s required expertise and needs.
What are Some Key Indicators that Mediation Could be a Good Option for You?
1. You have separated from your partner, and both want to resolve your matter outside of unnecessary Court litigation.
2. You are both generally amicable, you have received advice and understand your rights and obligations under the Family Law Act, however there are some issues which are preventing you from reaching agreement.
3. You are both willing to engage in the process, to have an open dialogue and are willing to comply with any prerequisite steps to ensure mediation has the best prospects of success.
When is Mediation Not an Option?
1. Mediation is not recommended in cases where there are concerns about the safety of the parties involved, such as where family violence has occurred.
This doesn’t mean that mediation should not occur at all, but we recommend getting in touch and obtaining specialist advice to ensure this is the correct process for you and your family;
2. Mediation is typically not appropriate in situations that require immediate attention or where there is a need for urgent interim orders. For instance, if there are concerns about child safety or the risk of child abduction, seeking urgent court intervention may be more appropriate to ensure the well-being and protection of the parties involved.
3. Mediation taking place too early, before important information has been shared to have frank discussions and understand what is on the table can be a waste of time and money for all involved.
In summary, mediation is an important tool and can achieve successful outcomes in many family law matters. Participation in mediation is also a mandatory requirement for most parenting matters before applying to have a matter heard in Court.
It is always best to set yourself up to have the best possible outcome from any mediation, as it is a significant investment of time, money and energy. By coming prepared with knowledge of your legal rights and obligations, and by engaging with the right mediator, you can navigate the mediation process confidently.
At Lagom Family Law, our team of experienced and knowledgeable lawyers specialise exclusively in family law matters. We are committed to a tailored approach to your individual circumstances and needs and taking the time to plan mediation so it can be successful. Client concerns will be heard, with the goal being that mediated agreements can be made legally binding.
Make the most of your family law mediation - by clicking here you can set up a time to discuss how we can assist with your mediation or call us on (02) 8379 1835.
We look forward to speaking with you.
Author: Vanessa Kreiman at Lagom Family Law
** The information contained in this blog is general and does not constitute legal advice. You should consult a lawyer specialising in family law for independent legal advice regarding your particular circumstances **
Lagom is Swedish and means not too little, not too much, just right. This is our philosophy of practice as we aim to provide tailored advice specific for your individual needs - that’s just right for you!
Lagom Family Law is a boutique legal practice lead by Principal Lichee Hogland who strives to achieve the best possible outcome for her clients whilst being approachable and respectful.