Family & Divorce

What you need to know about attending mediation with your ex-partner

If you have separated from your spouse or de facto partner, you might be contacted by a mediation service inviting you to attend mediation. For some, this can be quite daunting, especially if your former partner has not told you that they intend to start the mediation process.

The intention of this blog is to demystify the mediation process, help you understand what it involves and what we recommend that you do to prepare for the mediation.

The mediation process

The purpose of mediation is to reach agreement with your former partner about either parenting arrangements for your children or dividing your assets between you to formalise your property settlement, or both.

Mediation can be provided by a community-based service such as Relationships Australia, Centacare, Anglicare or Uniting Communities, to name a few. There are also some private mediation providers.

The mediation process involves each party attending a separate intake session with the mediator. At the intake session, the mediator will explain what to expect, how the mediation will work, let you know what you should bring, and ask you some standard questions to work out whether mediation is appropriate in your circumstances.

A joint mediation session with both parties will then be arranged, during which the mediator will assist you to try and reach agreement. The joint session can either involve both parties in the same room with the mediator, or it can be run as a shuttle mediation, which involves you and your former partner being in separate rooms.

Formalising agreements reached at mediation

If you reach agreement in relation to property matters at mediation, your agreement is not legally binding. After the mediation you will need to tell your family lawyer the details of the agreement you reached, and your family lawyer can prepare the documents necessary to make your agreement legally binding. In most cases, the required documents will include an Application for Consent Orders and an accompanying Minute of Order (commonly referred to as “Consent Orders“). If your mediation is about property settlement, it is essential that you ask your lawyer to prepare the Consent Orders once agreement is reached. The consequences of not doing so include that your former partner could change their mind in relation to the agreement in the future, and/or they could make a further claim against you in the Federal Circuit and Family Court of Australia. If your former partner makes a claim against you in the future, their claim can include all of the assets that you have an interest in at that time, even if you accumulated some of your assets after separation, or if they increased in value after separation. Therefore, making your agreement legally binding is the most important step after attending a successful mediation session.

If your mediation is in relation to parenting matters, you can ask your lawyer to assist you to make your agreement legally binding, or you can choose to formalise your agreement in other ways that are not legally binding. You should speak to your family lawyer about which option to formalise your parenting agreement is best for your circumstances.

If there are no issues of domestic violence or urgency in your matter, we often recommend that you attempt to reach agreement by way of community based mediation in the first instance, because it is generally the most cost effective. Of course, if you cannot reach agreement at mediation, we can help you with other options to reach agreement including written negotiations between lawyers and/or lawyer-assisted mediation.

Preparing for mediation

To prepare for mediation, we strongly recommend that you have at least one advice appointment with a family lawyer prior to the mediation, or more if required. This will be helpful to provide you with initial advice as to what the range of your entitlements might be, and explain the factors that are relevant to property settlement and parenting matters which will assist you to advocate for yourself during the mediation. Your family lawyer can explain to you the disclosure process, and the obligations that you and your former partner have to one another to provide full and frank disclosure of each of your financial positions.

Certificate of Attempted Mediation

If you do not agree to attend mediation, then your former partner can obtain a Section 60I Certificate, sometimes referred to as a Certificate of Attempted Mediation. This Certificate can enable a party to commence court proceedings in the Federal Circuit and Family Court of Australia, as attempting mediation is one of the things that parties are required to do prior to commencing court proceedings (unless there are exceptions such as urgency). This Certificate can also be issued if both parties attend mediation, but agreement is not reached.

Top tips to remember

In summary, mediation can be a very useful tool to try and reach agreement in a cost-effective manner, if there are no issues in your circumstances that would render mediation inappropriate.

The most important things to remember are to ensure that you have at least one or more advice appointments with a family lawyer prior to your mediation session, and to contact your family lawyer following the mediation to ensure that any agreements reached can be made legally binding (in the case of property settlement) or formalised in the most appropriate manner for your circumstances (in the case of parenting matters). If agreement is not reached at mediation, then your family lawyer will be able to discuss and advise you in relation to the next steps.

Get in touch

If you are separated and have been invited to mediation, or are considering inviting your former partner to mediation, we invite you to get in contact with one of our specialist family lawyers via our family law web page or on 1800 730 842.