No one wants to go to Court.
It is expensive, time consuming, and the outcome is often uncertain and depends on circumstances outside of most people's - and the lawyers control.
Family Dispute resolution, or Family Mediation is a great alternate to ensure a mutually agreed outcome as a way of settling outside of court!
Mediation is a dispute resolution process where parties involved in a dispute are assisted by an independent third party to help them reach agreement. Parties may agree to attend mediation to resolve financial and/or parenting issues.
Mediation can take place before or after court proceedings are commenced. Agreements about the care of children which are reached at mediation can be formalised by way of Parenting Plans and steps can also be taken for mediated agreements to be made binding by the Court (known as consent orders).
Family Dispute Resolution (FDR) is a specific type of mediation which must, with limited exceptions, be undertaken prior to the commencement of court proceedings in parenting matters.
Dispute resolution services can provide an affordable and timely option for resolving disputes, while allowing you greater input into the process and the outcome.
THE BENEFITS OF MEDIATION
The Benefits of a Family Mediation include:
- It Saves You Money
- It Saves You Time
- It is Flexible Around Your Needs
- It is an Informal Process
- It is Less Adversarial
- You Retain the Control
- You Set Your Preferred Outcome as a Goal
- You get to Negotiate Your Own Preferred Outcome
- The Process Remains Confidential
- The Process Seeks to Restore Relationships
There are certain steps that are taken in a Mediation Process, and are required to be met prior to an Agreement being Drafted which both parties can agree on.
Family Mediation takes place on the basis that both parties enter into the Mediation voluntarily, without any threat, duress or coercion.
Before you head into a Mediation, you can prepare in the following way:
List your priorities and be clear about what you want to get out of the process;
Know what are the sore points to each party, and plan your response;
Be honest and clear with your Mediator when you meet with them;
Taper your emotions - the Mediation process is not an opportunity for anyone to play the blame game! Rather, it is a mutually voluntary, confidential restorative process, which seeks to be outcome focused and non-adversarial in nature. If you get emotional at any time, feel free to ask to take a break.
Practice your communication skills, and be assertive about your needs and the resolution you seek.
THE PROCESS OF MEDIATION
Family mediation is a process in which an independent, professionally trained mediator helps you work out arrangements for children and finances following separation.
Mediation can also be helpful when arrangements you’ve made before need to change, particularly as your circumstances change, or as your children grow up.
Mediation helps you stay in control.
No-one will make you do anything against your wishes.
The mediator will help you find a solution which works for you both, and will explain what needs to happen to make an agreement between you legally binding.
The steps in Family Mediation include:
1. INTAKE SESSION - PLANNING FOR THE MEDIATION
In the PLANNING phase of the Mediation, the Mediator meets with both parties to answer any questions and discuss due process.
This is also an opportunity for the Mediator to decide whether each party is prepared and ready for the Mediation process.
Both parties need to agree to the confidential, voluntary process of Mediation, before the matter can proceed to the next stage.
2. PREPARATION STAGE
During this stage, the Mediator will prepare the required documents for Mediation.
Each party will be asked to prepare certain documents, pertaining specifically to their matter.
3. INTRODUCING THE GROUND RULES
During Mediation, the Mediator will provide an INTRODUCTION to what will occur in the process, and what outcome participants can accept.
The Mediator will provide clear instructions and advice as to the Mediators Role.
The Mediator will make the role of each party within the process of the Mediation clear and any ground rules that apply to the process and to the all parties.
4. OPENING STATEMENTS FROM THE PARTIES
Each party has the opportunity to make an OPENING STATEMENT, and to have their voice heard during the Mediation process.
In their opening statements, each party can state the main problems as they see it, and comment on what their priorities are for the Mediation.
Each party can present their preferred outcome in their opening statements.
5. JOINT DISCUSSIONS
In JOINT DISCUSSIONS, the Mediator will present each party's position as a summary as the Mediator understands it to be. During this time, with the assistance of the Mediator, the parties will agree what are the priorities of the Mediation, and what matters should be, and can be dealt with, as a matter of priority.
If you get emotional at any time during the Mediation process, feel free to ask the Mediator for a break.
6. PRIVATE DISCUSSIONS
the next step affords each party an opportunity to speak to the Mediator directly in PRIVATE DISCUSSIONS.
During this time, each party can confidentially and privately take the opportunity to discuss their opinions and thoughts with the Mediator, as well as to negotiate a preferred settlement arrangement.
7. NEGOTIATING TOWARDS AN AGREEMENT
The second last step in the Mediation process includes a NEGOTIATION stage, where, all of the matters discussed will be clarified for the purpose of drawing up an Agreement.
During this stage, each party have an opportunity to clarify their position and priorities, and ensure that they clarify exactly what is of importance to them.
This is the time that each party needs to explain what options they wish to be reflected in the joint Agreement.
8. THE JOINT AGREEMENT
If the parties are able to come to a JOINT AGREEMENT, the Mediator will facilitate the drafting up of an Agreement, as discussed in the Mediation session.
A Mediation Agreement is considered legally binding.
A LEGALLY BINDING AGREEMNT
The result of a Family Mediation may be that both parties reach a resolution in the form of a written joint Agreement.
A Parenting Plan under the Family Law Act 1975 must:
be made free from any threat, duress or coercion
be in writing
be made between the parents of the child
be signed by the parents of the child
deal with one or more of the matters described in section 63C(2) of the Family Law Act 1975, such as who the child will live with, the allocation of parental responsibility, maintenance of the child, and the process for resolving disputes regarding the Parenting Plan.
Parenting Plans are dealt with under section 63C of the Family Law Act 1975.
The Family Law requires agreements (whether about financial separation or arrangements for children) to be formally approved by the Family Court.
There is a formal process to achieve that, which includes filing an Application in the Family Court (called a Form 11 Application for Consent Orders. A filing fee is payable (currently $160.00).
We will draft the agreement reached at family mediation in a form which would enable you to use it as the orders you are asking the Family Court to make about financial or children’s matters. That way, you can obtain a binding and enforceable agreement.
You are both entitled to obtain independent family law advice about the terms of an agreement before it is filed in the Family Court. However, independent legal advice is not a formal requirement and you can make up your own mind whether to instruct lawyers or not.
WAHT IF ONE PARTY DOES NOT WISH TO ATTEND MEDIATION?
Where you wish to mediate and the other person has not agreed we will, without cost or commitment, contact them and discuss the possibility of divorce mediation.
In most cases, we are able to encourage the other person to participate in a family mediation in an endeavor to resolve issues.
However, where they are still unwilling to mediate in children’s matters we may issue a certificate to enable you to commence proceedings in the Family Court.
In matters involving property/financial settlement, where the other person refuses to mediate, you may have to commence proceedings in Court. You may be ordered by the Court to then undertake a form of mediation known as Mediation Style Conferencing.
WHAT IF THE PARTIES CANNOT AGREE?
Most mediations achieve resolution of at least a majority of the issues.
If you cannot resolve your differences at family mediation, you have spent a very limited amount of time and a little money to learn that you will now have to spend lots of time and money to go to Court. Both of you will be engaging the Court process in the knowledge that you are unable to resolve your disputes and need a third party to make those decisions for you.
In some divorce mediations, not all issues are resolved at the first session. However, the groundwork for full agreement has probably been established and further work may achieve a satisfactory agreement. At very worst, many of the issues which were previously contested will not have to be argued in the Family Court because they have already been resolved.
To book in a Family Mediation Session with Andrea Tokaji,
a trained international human rights lawyer,
accredited mediator and conciliator,
click the on-line calendar link below: