The Mediation Maze… a guide to mediation in family law matters

Two mums and three dads were waiting at the school gate to collect their children.  A third mum ran over to the group, crumpled paper in hand, looking frazzled.  “My lawyer says I have to go to a private mediation,” she said, waving the paper at the other parents. 

“Really?” replied one of the dads, “My orders say I have a conciliation conference.” 

“My neighbor spoke with me about mediation,” said the first mum.

“I’ve heard about lawyer-assisted mediation,” said the second mum.

“And I have a letter inviting me to a Family Dispute Resolution Conference,” said the second dad.

“Is that the same as a Dispute Resolution event?” queried Dad number three.

The six of them, all separated parents who had bonded over their family law issues, looked at each other with wrinkled brows and tilted heads, confusion abound.

The family law system

The laws that govern family law issues in Australia, and the Courts that hear family law matters (primarily the Federal Circuit and Family Courts of Australia), are often collectively referred to as the ‘family law system.

You may know the family law system as the method of resolving disputes between separated couples related to their property settlement and parenting disagreements.  Over its evolution the family law system has sought to develop processes with a focus on simplicity, efficiency and cost effectiveness to help separated couples find solutions to their family law issues and return to their lives, school pick-ups included.

What is mediation?

Mediation is one of the tools that has been introduced, embraced and prioritized by the family law system.  For separated couples with property settlement or parenting disputes, mediation can be a way for them to communicate and transition to an agreed outcome with the assistance of a person skilled in addressing the challenges separated couples face.  Mediation aims to put the separated couple in the driver’s seat to enable them to make the decisions about their life and to move from disagreement to agreement in a timely and cost-effective manner.  The integration of mediation within the family law system aims to keep people out of the Family Law Courts or shorten their time involved in a court process.  It is important to note that, with some exceptions, the Family Law Courts require separated couples to attempt mediation before they can apply to the Court.

As we can see from our parents at the school gate, sometimes the pathways in family law matters are confusing!  Mediation sounds fairly simple doesn’t it? Come together, have a person help you communicate, address problems, then agree a solution. But, of course, there is more to it.  Let’s look at how mediation sits within family law disputes and how it might be able to help you resolve your family law issues.

Different types of mediation

Further to the first Mum’s comment, it might be useful for us to recall that mediation is the broad process of attempting to transition from disagreement to agreement with the assistance of a qualified, external and neutral person.  When we look underneath the family law mediation umbrella, we see several different types of mediation.  For each of our parents at the school gate the best mediation option for them and their family law issues will depend on their circumstances.  Your friendly TGB family lawyer can help with advice on what type of mediation is the best fit for your circumstances.

Lawyer-assisted mediations

Our second mum spoke about lawyer-assisted mediation.  This mediation option involves the separated couple, their lawyers and an external mediator.  The separated couple would each have their own lawyer, talk through their circumstances and their lawyer would help outline what is in dispute.  The two lawyers might then assist their clients to appoint a person who is appropriately qualified as a mediator.  Often this person will have a qualification which  means that, in addition to being called a mediator, they are referred to as a ‘Family Dispute Resolution Practitioner’ (but let’s stick with mediator).  The lawyers will then work with their clients to prepare for the mediation.  The mediation will occur when the separated couple and their lawyers attend with the mediator in a session that will see them address their property and or parenting disagreements.  In that session they are also likely to explore options for agreement and hopefully, reach an agreement.  Lawyer-assisted mediation can occur at any time after separation, or it can occur during or as part of court proceedings, when it might be referred to as a private mediation.  A key component in this type of mediation is the involvement of lawyers to give advice to the separated couple and their attendance with their clients at the mediation.

Family Dispute Resolution Conferences

The second Dad mentioned his invitation to a Family Dispute Resolution Conference.  A Family Dispute Resolution Conference is also a type of mediation.  The term ‘FDR Conference’ tends to be used by agencies or services who conduct this type of mediation.  For example, Family Relationship Centres and the Legal Services Commission of South Australia conduct mediations and call their mediations a Family Dispute Resolution Conference.  These mediations, like all mediations in a family law setting, may canvas property settlement or parenting issues.  The agency that runs the mediation will provide the mediator (or Family Dispute Resolution Practitioner) and are responsible for setting out and facilitating the mediation process.  Sometimes separated couples attend a Family Dispute Resolution Conference with their lawyers and  other times lawyers are not part of this process.  Often this will depend on the agency who conducts the mediation and whether the separated couple is involved in court proceedings or not.  Those agencies who provide Family Dispute Resolution Conferences will have forms and intake processes for separated couples to undertake prior to the formal mediation session occurring.  It is important for you to know that at any time before, during or after a Family Dispute Resolution Conference you are able to get legal advice from your friendly TGB family lawyer about how to prepare for mediation, how the mediation proposals or mediated agreement affect you and any obligations or entitlements that might arise from the mediated agreement.

Conciliation Conferences

The Dad who spoke of a Conciliation Conference will be attending a type of mediation that occurs when a separated couple is already before the Family Law Courts with property settlement issues.  Conciliation Conferences are a required step in court proceedings and occur when ordered by the relevant Court, usually at an early stage.  When the Federal Circuit and Family Court of Australia orders a separated couple to attend a Conciliation Conference, this type of mediation is run by the Court.  Usually a Judicial Registrar or Deputy Registrar of the Court will be the mediator.  Prior to the Conciliation Conference there will be actions required by the parties, listed in orders made by the Court, to ensure that when they attend at the Conciliation Conference, the property settlement issues are identified and any issues in dispute are narrowed.  Where the separated couple each has a lawyer, their lawyer attends the Conciliation Conference with their client.  As with other court events, the lawyer often speaks on behalf of their client at the Conciliation Conference and there are rules of the Court that need to be followed.  Again, your friendly TGB family lawyer can give you advice and guide you through this process if a Court makes orders for you to go to a Conciliation Conference.

So now that you have mediation sorted, a slight twist…

For the mum and dad who are mediating as part of their Court proceedings, they may find the Court uses the term, ‘dispute resolution event’ as opposed to ‘mediation’.  Dispute resolution events before the Court can include all of the types of mediation that are outlined above.  Participating in a dispute resolution event can be voluntary or ordered by the Court.  As with mediation, dispute resolution events aim to give the separated couple opportunities to resolve their dispute by reaching agreement, enabling them to end Court proceedings in a timely and cost-effective manner.

In summary…

The hope for all those embarking on mediation is that they can reach agreement and finalise the property settlement or parenting issues they are facing.  To assist you to select the right mediation option for you or to prepare for one of the mediations described above, seeking legal advice at the earliest opportunity will help set you up for success.  If you do reach agreement, it is wise to seek legal advice about what the mediated agreement means for you and what steps are required to make a mediated agreement legally binding.  That might be the next subject of conversation at the school gate!

Get in touch!

TGB’s friendly family lawyers in South Australia, Western Australia, the Northern Territory and Queensland are always happy to answer any of your mediation questions, or any questions relating to any aspect of separation and divorce.

The author, Carissa Miller, is a Senior Associate in our Port Lincoln office who specialises in family law. If you would like to discuss any aspect of mediation, or any other family law issues further, please get in touch with Carissa at (08) 8682 1488 or cmiller@tgb.com.au.