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Private mediation: A family law dispute pathway

Family & Relationship Law
Private mediation: A family law dispute pathway

Given the significant delays in the family law system, the Family Court of Australia has recently taken its own initiative to reduce delay by introducing the Winter Callover list, where all matters currently before the Court are being reviewed for the purpose of ensuring parties are exploring dispute resolution pathways, such as mediations.

In property or parenting disputes, the Family Court expects that parties will try alternative forms of dispute resolution before the Court is asked to intervene and make a judicial determination. One such option is private mediation, a process in which an impartial third party (known as a mediator) helps to work through the issues in a dispute and guide those involved toward mutually agreeable outcomes - and often a commercially sensible one, too!

When to mediate?

Parties are able to mediate at any point during their family or relationship dispute. They need not have commenced court proceedings to engage in the mediation process. In the same vein, parties who are amid family law court proceedings can also engage a private mediator to resolve the dispute without the need for further costly and delayed court processes.

What are the benefits of mediation for family law disputes?

Resolving a dispute through mediation is significantly less expensive and less stressful than going through complex, lengthy and costly court proceedings.

Mediation is designed to facilitate discussion, improve communication, and provide parties with the freedom and flexibility to fully explore their options. Where appropriate, mediators may choose to facilitate a "shuttle" mediation.

Family law mediators are trained to steer parties away from criticism and blame, with a focus on finding outcomes that will provide the most benefit in the future. This is particularly important in parenting cases.

Mediations are structured to be empowering and offer parties a greater sense of control over their decision-making (rather than waiting for a judge to make a decision that may significantly impact their lives and their children's lives).

What happens after a mediation?

When an agreement is reached in a mediation, the terms of the agreement are finalised by filing orders in the Family Court. The agreement then becomes legally binding and enforceable.

If an agreement isn't reached through mediation, parties can opt to apply to bring their matter before a court (or wait for a judicial determination); or attempt arbitration, another form of alternative dispute resolution in which an arbitrator is engaged to make a determination to resolve the dispute. Read more on arbitration here.

What makes a good family law mediator?

A skilled family law mediator will:

  • listen and be respectful, and encourage parties in the mediation to do the same
  • motivate both parties to fully voice their concerns and expectations
  • be able to find common ground, even in conflict
  • manage emotionally-charged conversations and situations
  • provide space for parties to openly and creatively explore all their options
  • guide parties toward constructive and realistic decision-making

For family law disputes, it is recommended that the mediator also practices in family law, as these mediators will have a deep understanding of how family law is applied, can focus on relevant family law issues, and provide confidence that the outcome reached between parties is within the range of outcomes the court would have otherwise determined (if the matter was required for judicial determination).

Private mediation at Lander & Rogers

Lander & Rogers' Family & Relationship Law team includes qualified mediators with the knowledge and expertise to guide clients through alternative family law dispute processes. To find out how mediation can assist your family law or property matter, please contact a member of our team.

Eleanor Lau | Partner, Sydney | Nationally qualified mediator (AIFLAM)

Genevieve Dee | Partner, Brisbane | Nationally qualified mediator (QUT)

Stephanie Doyle | Partner, Melbourne | Nationally qualified mediator (AIFLAM)

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.