I AM DIVORCING. Is Mediation Right For Me?

Mediation or FDR is a process by which the Mediator/FDRP is responsible for assisting you and your ex decide the following:

1. What you both agree you want to discuss. 

The Mediator/FDRP cannot compel you to discuss a matter in this process that you are unwilling to discuss.  You should note however that whilst the Mediator/FDRP cannot compel you, they may get you both to agree to “park” any issues which cannot be immediately resolved and if there is time and you are both willing to, you can then circle back to any unresolved issues.  You should not terminate the process simply because your ex does not want discuss a given topic or issue.  If you do not want to discuss something, you can suggest that this be parked and perhaps it can be picked up again later

2. The order the topics you are prepared to discuss to endeavour to reach resolution

The Mediator/FDRP will often assist you decide the order of the topics to be discussed and often they will choose a topic you are both more likely to agree on even though it may not be the most pressing topic in your mind.  We recommend you follow the lead of the Mediator/FDRP on this point given there are reasons why they do certain things which is embedded in our training when we learn how to be Mediators and FDRPs.

3. Information and Document Exchange

Lawyers are required to pay close attention to documents in family law matters particularly in relation to property disputes, but this may be equally as important in parenting disputes.  Mediators/FDRPs are less likely to fixate and even look at the documents which sit behind the conversations between you as the Mediator/FDRP’s role is to explore settlement opportunities. 

The Mediator/FDRP may recognise though that an impasse to settlement is occurring because of a factual dispute which is not capable of resolution unless there is a form of documentary exchange and legal advice obtained by both parties ahead of the next step in the process. 

If there is no need for financial documents to be exchanged and both parties are comfortable with what is being presented as factual, then the conversation can continue without the discovery process occurring in the same way that it would if you were litigating your matter in Court.

4. Ascertaining the Pool of Assets or Subject Matter

The Mediator/FDRP will also work with you both to identify and then attribute values to assets in the pool to be divided between you and will also manage the conversations between you in relation to the pool or the subject matter in dispute. 

5. Developing Options

The Mediator/FDRP’s role is to assist you both develop settlement options in a meaningful and constructive way in relation to settlement and assist the parties have that conversation. 

We assist clients prepare by visiting the 5 steps outlined above with them and discussing each in turn and working out what information is it that the client needs to be able to make informed decisions when they are in the room (either actual or online). 

We can provide preliminary advice prior to and if there is an impasse about a particular issue, we can provide legal advice about what your options are during the process.  In every other aspect of dispute resolution or litigation, we are actively involved and present, even if we brief Barristers to represent you in certain modalities.  But in this process, we are not present in the room or online with you and we do not participate in the process itself.  We sit outside the process assisting you as required.

At the point when the Mediation concludes, we are involved in assisting you by either drafting documents to give effect to the settlement reached or we propose alternatives if Mediation does not result in a final outcome.

The purpose of FDR or Mediator Only Mediation is to attempt to divert parties from lawyer led negotiations, lawyer involved Mediation or litigation in Court and as such we do not work alongside the clients (by representing them) at the Mediation.  This form of dispute resolution may not be right for you and therefore you should take the time to make the decision from the outset about which path is right for you.  Choosing the right path can be critically important due to the impact it has on you and your family – not just for the lifetime of the dispute but possibly and sadly well into the future.  The wrong pathway can dog your steps. 

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. The contents of this blog are relevant as at 27 May 2021.  We recommend you obtain specific advice relevant to you and your family’s situation.

Caroline Counsel

Divorce Lawyer + Accredited Family Law Specialist

FDRP and Mediation trained Family Lawyer


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