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Family Law Matters

What is Mediation?

If you are currently experiencing a separation with your ex-partner, you have likely heard the term ‘mediation’ before. But, what is mediation? And what happens if you can’t reach an agreement at mediation?

What is Mediation?

Mediation is an important part of reaching agreement in any financial or parenting matter. It allows both you and your ex-partner to discuss what you both want or what is in the children’s best interests in a confidential and impartial environment.
A mediation involves you, your ex-partner, your respective legal representatives (if you have them) and an independent mediator. The independent mediator will listen to any issues hindering an agreement and assist in identifying a range of solutions to them. Throughout the mediation, all parties, including the mediator, will work together to reach an agreement that will finalise any parenting or financial disputes between you and your ex-partner.
There are many benefits to mediation:

  1. It can assist resolve disputes in a quicker and more cost-effective way, without needing to go to Court.

  2. It is informal and takes the stress away from being in a Court room.

  3. You can actively participate in and can control how an agreement is reached.

  4. Mediations are confidential. This means that discussions at mediation are not able to be discussed in Court and are not able to be recorded.

  5. Hostility can be reduced by having an independent mediator facilitate discussions.

  6. You can identify what you and your ex-partner have agreed on, and focus on any other issues that require attention.
    All parties should attend mediation before considering commencing proceedings in the Federal Circuit and Family Court of Australia.

Mediation and Parenting Matters

In any parenting dispute, the Court requires parties to have attended mediation prior to commencing proceedings in the Federal Circuit and Family Court of Australia. This is set out in section 60I of the Family Law Act 1975 (Cth) (‘the Act’).

Once parties have attended mediation, they will be given a Certificate which states that:

  1. That the parties attended mediation and made a genuine effort to resolve issues; or

  2. That the parties attended mediation however one or both did not make a genuine effort to resolve issues; or

  3. That the parties did not attend mediation due to a refusal by or failure of one party to attend; or

  4. That it was not appropriate to attend mediation; or

  5. The parties attended mediation, but the mediator did not think it was appropriate to continue.

If proceedings are commenced without this certificate, and no exceptions apply, the Court may impose a range of penalties. This can include an Order to pay the other parties costs.

When is Mediation not appropriate?

Mediation may not be appropriate in a range of circumstances.

These can include where:

  1. There are allegations of child abuse or family violence, and they are being investigated;

  2. Your safety is at risk, and there are allegations of family violence;

  3. Your children’s safety is at risk, and there are allegations of child abuse, neglect or family violence;

  4. There is a Family Violence Intervention Order in place, and attending mediation would be in breach of the Order;

  5. Your matter is urgent. This can include situations involving relocation and child abduction. It may also include where an asset is being sold, destroyed, or depleted, such as a family home or other assets.

If you are not sure whether mediation is appropriate in your circumstances, contact one of our family lawyers to discuss your options.

What happens if we can’t reach an agreement at mediation?

It is possible that you and your ex-partner are unable to reach an agreement as to parenting and/or property matters at mediation.

In some circumstances, it may be appropriate to continue negotiations and discussions through your respective legal representatives. For example, it may be the case that you have agreed on most issues, however some minor issues remain in dispute.

However, in other circumstances, it may be appropriate to commence proceedings in the Federal Circuit and Family Court of Australia. This is recommended in circumstances where numerous significant issues remain in dispute, and it is unlikely that these issues are able to be resolved outside of Court.

Our experienced lawyers can assist you to decide whether it is necessary to commence proceedings in Court.

The Next Step

If you would like advice about your family law matter and wish to obtain an understanding of the options available to you, contact 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next. We look forward to speaking with you.

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