“Mediation Never ‘Fails’ Even When the Dispute is Unresolved”

Many family law clients are encouraged by their lawyers, where appropriate, to attend mediation before issuing proceedings in Court.  Where there is urgency or there has been family violence, mediation may not be appropriate at a certain juncture of a client’s matter and the client must be carefully advised before mediation is deemed suitable or indeed ever suitable in their given circumstances.

Court should always be a place of last resort.  The cost of going to Court, in terms of time, finances and the emotional wear and tear is too great for many families to bear.  As many clients in the family law system have not had prior exposure to the law or how the legal system works, they often harbour an unrealistic expectation of what going to Court means and what the Court can and cannot do for them.  In the heat of the moment, clients feel it is the only place they can go to be heard and get “justice” without appreciating what is really involved.

As those who work in the family law in Australia know, pre-issuing mediation (Family Dispute Resolution – FDR) is compulsory in relation to children’s cases.  As indicated above, there are only a few exceptional circumstances whereby clients are not required to attend on a Family Dispute Resolution practitioner ahead of being able to start a case in Court.  This compulsory form of mediation is not intended to put up barriers to justice but is a requisite step which is designed to provide families with a more suitable forum in which their issues can be considered and their concerns explored with the assistance of either an individual or co-mediators.

Many clients labour under the misapprehension that all the issues which can visit a family leading up to or after separation can be sorted out by the Court.  This is simply not the case.  The Court’s jurisdiction is limited to the matters which are contained in the Family Law Act (and other related legislation) and whilst these issues are vast, the Court is not the place in which the complex array of human feelings and concerns can be worked through.  Mediation offers a more flexible environment in which the separation and all that entails can be managed.  It also affords a separating couple explore a new way of working together and learn new tools for managing their relationship in its altered form.  For example, transitioning from an intimate couple to a couple who are focussed on the best possible outcome for their children rather than on navigating their way through their emotional relationship as a couple.

Mediation in relation to property and financial matters is similarly available to couples instead of issuing proceedings in Court.  Whilst these couples may not be eligible for complimentary sessions at a Family Relationship Centre to work with an FDR practitioner, this does not mean that they cannot benefit from mediation rather than litigation.  Many of these couples are likely to be encouraged by their family lawyer to attend some form of private mediation.  This may occur prior to issuing Court proceedings but equally valid may be the legal advice to issue proceedings in Court first and then attend mediation.  Without going into all the possible reasons for the timing of Court v Mediation, the important this is always approach mediation with an expectation of solving or at least narrowing the dispute.  This is why I say even if mediation does not finalise a given matter, mediation never fails.

There are various models of mediation.  The models in which Caroline Counsel Family Lawyers are most commonly involved are either mediations whereby Caroline Counsel either works in the role of the mediator (Family Dispute Resolution Practitioner) or the firm is advising clients to attend on either an FDRP or Mediator with or without the solicitors of the firm being present.

Solicitor-assisted mediation (whereby the solicitors work with their clients in the model either by being present or advising before and in between mediation meetings) can:

  • provide a forum for a couple to make a start towards settlement
  • enables the participants to articulate what matters most to them and why
  • provides a framework in which the couple decides what they want to discuss and how they want to proceed (empowering them to take responsibility for their settlement steps)
  • elucidate issues for some participants – which may require agreed work to be undertaken between meetings to clarify the nature or parameter of the dispute
  • helps a couple understand what information they need from each other or from third parties (i.e. accountants, advice from other experts such as an childhood development expert)
  • enable some participants to articulate what they want
  • enable participants to think about what legal advice they need from their lawyers
  • enable participants to understand what they do and do not want to have happen to themselves/other family members
  • gives participants a sense of buy in and personal accountability for the conversations they are having/are about to have
  • enable the couple to better understand their ex’s perspective or point of view
  • enable the participants to realise what they need to do in order to progress the settlement conversation

(This list is not intended to be exhaustive).

Even when a couple falter and get to the sticky point of resolution but can’t quite seem to get to a final solution, this does not mean that the mediation has failed. There may be many reasons why a couple are unable to put pen to paper and close off that chapter in their lives.  Those reasons may be complex and not even recognised by those intimately involved.  The whole point is not to give up on the concept of mediated solutions but rather to stop, assess, reassess and understand what else is needed to keep working on forging not forcing a solution on the participants.  Sometimes it can simply be a case of mediating too soon.  Sometimes it can be a case of one party being afraid or unable to let go but unable to say so.

Regardless of the reason why it stalls, mediation never “fails” in my opinion as it provides all with insight as to where on the roadmap to settlement a couple may sit – and they don’t always sit in the same position at the same time on their journey to settlement.

If you need help with your family law matter or would like further information about mediation, you should contact our office to make an appointment on 9320 3900 or email [email protected]

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers for legal advice.  The contents of this blog are relevant as at 17 January 2018.  We recommend you obtain specific advice relevant to you and your family’s situation.

Caroline Counsel

Family Dispute Resolution Practitioner

Collaborative Practitioner

Accredited Family Law Specialist

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