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Mediation – Frequently Asked Questions

 

What types of mediation exist?

There are numerous types of mediation including Private Mediations, Case Assessment Conferences and Conciliation Conferences, as well as less formal mediation processes for parenting matters.

In parenting matters, mediation generally occurs through an informal process through a mediation service, for example a Family Relationships Centre or Relationships Australia.

If your former spouse has a solicitor, he or she may suggest that you attend a Private Mediation to enable negotiations to occur with respect to the issues relevant to your case. In these circumstances we would strongly recommend that you obtain independent legal advice prior to any of these events, and / or have a solicitor attend the mediation with you.

If your former spouse has commenced Court proceedings you may be required to attend a Case Assessment Conference, a Conciliation Conference or a Private Mediation.

It is very important to understand what is required of you at each of these conferences and therefore you should obtain independent legal advice regarding the court process and your rights.

 

Do I have to see a solicitor if I am going to mediation?

Whilst it is not mandatory for you to see a solicitor before a mediation it is very important that you obtain legal advice prior to attending any type of mediation, whether it be an informal mediation between you and your former spouse, a formal mediation organised through your solicitors or a mediation which occurs through the court process.

In the absence of legal advice, you are entering into negotiations without:

  1. knowing where you stand;
  2. knowing what you should or should not be offering to the other side;
  3. knowing whether you should or should not agree to something as it may not be:
  • in your best interests; and
  • in parenting cases you could be agreeing to arrangements which may not be in the children’s best interests.

If you are due to attend mediation through:

  1. a Family Relationships Centre or other mediation service regarding parenting;
  2. a Roundtable Conference;
  3. a Private Mediation;
  4. a Case Assessment Conference; or
  5. a Conciliation Conference

We encourage you to obtain independent legal advice at least one to two weeks prior to the proposed mediation.

 

What is discussed at mediation?

Mediation provides an opportunity for couples who have separated to discuss and resolve issues in relation to the following:

  1. children and parenting matters;
  2. division of property;
  3. spousal maintenance; and
  4. child support and adult maintenance.

Parenting matters include discussions around who the child should live with, the time the child is to spend with the other person which can include grandparents and other family members, the child’s daily routines, health, education, religion and the exchange of children (drop off and pick up) and financial support of the child.

Property includes assets (things that you own such as a house, car) and liabilities (things you owe money on such as a mortgage or credit card).

The assets can be owned individually, jointly, by a family trust or a company.

Assets also include shares, investments, inheritances, superannuation and furniture.

 

Do I have to speak at mediation?

You will never be required to talk directly to your former partner at a mediation if that is not your preference.

Mediations can take place with or without lawyers present.

Mediations can occur with both parties and their lawyers all in the one room with a mediator or by way of a shuttle, whereby the mediator moves between both parties who can be in separate rooms or, if required, separate buildings!

Clients can choose to speak directly via the mediator at a mediation or to speak only via their lawyers.

Mediations and mediators offer a cost effective and efficient means of attempting a settlement and can be adapted to suit the needs and wants of the parties.

 

Who is a mediator?

A mediator is a neutral person who assists the parties to participate in the decision making process to reach their own agreement.

He or she is a trained and accredited person who is impartial, meaning they will not express a view about the merits of the matter.  Mediators are usually legal practitioners who have undertaken training to conduct mediations and are accredited by the Law Institute of Victoria.  In children’s matters, a mediator may be a child psychologist or lawyer.

The mediator facilitates discussions but decides nothing.

A dispute will not be settled by the mediator, but by the parties themselves involved if they reach agreement.

 

What does a mediator do?

A mediator is an independent person who assists disputing parties to:

  1. identify their issues;
  2. negotiate; and
  3. resolve their disputes.

Mediators do this by facilitating discussion between parties and offering a neutral and independent point of view. They are non-judgmental and cannot impose any decisions on the parties. Instead they assist the parties to reach an agreement that the parties are happy with.

A mediator is often trained and has certain qualifications, skills, knowledge and experience. Their main aim is to help parties reach a fair agreement.  They do not give legal advice.

A mediator will usually meet with the parties separately to discuss their issues and concerns.

The mediator will then meet with all parties together to discuss each party’s issues and explore potential resolutions.

 

Why should I go to mediation?

Prior to issuing an Application with the Court for parenting matters, the Court generally requires a certificate of attempted mediation unless there are factors that exempt you from obtaining such a certificate.  Such factors include urgency of your application, family violence and whether the child’s safety is at risk.

Mediation allows you and your former partner to explore a settlement without the involvement of lawyers at the early stages of your separation.

Mediation not only deals with children’s matters but also property matters.

It can be a cheaper process and allows you to control the outcome as opposed to the Court determining the outcome.

If you have reached a settlement through mediation, it is important that you receive legal advice as to the agreement.