Mediation is a form of alternative dispute resolution that helps people involved in legal disputes resolve issues without going to court. In family law, mediation offers disputing parties the chance to attend mediation with a neutral third party who guides discussion and helps the parties decide on their own agreements.
Unlike court proceedings, where a judge imposes an outcome, the mediation process is a voluntary process or Court ordered requirement in legal proceedings, focused on encouraging open discussion and exploring solutions that work for everyone. Whether the issues in dispute involve parenting arrangements or property settlement agreements, mediation offers parties a more flexible and cost-effective pathway to resolving disputes.
This article explains what a mediator does, what happens during a mediation session, and how mediation serves as a crucial bridge between private negotiations and the family law courts.
What Does A Mediator Do?
A Mediator is an independent person and neutral third party who assists disputing parties in resolving disputes without going to court. During a mediation session, the Mediator listens carefully to each side, encourages open discussion, and helps clarify the issues in dispute.
The Mediator does not act as a judge imposing decisions. Instead, mediation offers parties the opportunity to identify solutions, explore settlement agreements, and reach an agreement that works for everyone involved. Accredited mediators operate under the National Mediator Accreditation Standards and must remain impartial throughout the mediation process. Many mediators are solicitors, Barristers or former Judges from that field of law.
While mediators cannot provide legal advice, they may suggest when parties should seek it. Some people attend mediation with their legal representatives, while others choose to participate on their own behalf or with a support person such as a friend or family member.
The Mediation Process Explained
The mediation process usually begins when one party, or both parties, agree to attend mediation or may be ordered by the Court. This process can be arranged through private providers or a Family Dispute Resolution service. Mediation can take place in a dedicated mediation room, online or via shuttle mediation, where parties are placed in a separate room and the Mediator moves between them.
At the start of mediation, the Mediator explains their role as a neutral person, outlines the ground rules and discusses mediation confidentiality. The people involved then set the agenda, identifying the relevant issues such as property settlement, parenting plans or financial matters.
Mediation discussions focus on creating options and working towards a negotiated outcome. If the parties consent, any agreement reached can be formalised into Consent Orders or a parenting plan. Mediation in itself is not legally binding, though, and in most cases, you will need to engage a Family Lawyer to formalise any agreements made on the day.
Mediation – A Bridge Between Private Negotiation & Court Hearings
One of the most important things a Mediator does is act as an impartial third party between the people involved in a family law dispute. Mediation offers parties the chance to resolve the dispute on their own terms before a court hearing becomes necessary or before a Judge makes a decision.
If the parties agree and an agreement is reached, it can be made binding by filing Consent Orders in the Federal Circuit and Family Court of Australia. This means the negotiated outcome of mediation discussions can have the same weight as a court order, but without the stress and legal costs of going to court or the uncertainty associated with not knowing the outcome of a Judge’s decision.
If mediation is unsuccessful, participants can formally notify the court that mediation was attempted with a 60I Certificate. Even when full resolution is not possible, mediation still helps narrow down the relevant issues for a final hearing, saving time and costs for the parties involved. In this way, the Mediator plays a vital bridging role – offering a safe space for negotiation, while keeping the door open to court proceedings if they are ultimately required.
Parenting Mediation
Parenting mediation is a Family Dispute Resolution process designed to help parties involved in a family law matter reach an agreement on arrangements for their children. During a mediation session, the Mediator listens impartially to each party, encourages open discussion, and guides the parties toward mutually acceptable solutions that prioritise the child’s best interests.
Disputing parties can discuss issues such as time spent with each parent, schooling, holidays, and other relevant parenting matters. The Mediator ensures that the parties decide how to structure arrangements, rather than a judge imposing a solution. If an agreement is reached, it can be formalised into a parenting plan or court order, which may be filed in the family law court.
Family Dispute Resolution practitioners often facilitate parenting mediation in Melbourne, particularly when a court requires an s60I certificate before proceedings can commence. Mediation offers parties a process to reach an agreement while maintaining mediation confidentiality and reducing the stress, time, and legal costs of going to court.
Property Mediation
Property mediation helps disputing parties resolve legal issues related to the division of assets, debts, superannuation or financial agreements, and also spousal and child support matters. The Mediator works with the parties involved as an impartial third party, encouraging open discussion and helping them explore options for a negotiated outcome.
If the parties agree during mediation, the agreement can be drafted into Consent Orders, Financial Agreements, or super-splitting orders and filed with the court by your lawyers.
Lawyer-Assisted Mediation
In family law matters, parties may choose lawyer-assisted mediation to ensure they are fully informed about their legal issues during the mediation session. This means that each party can attend mediation with their legal representatives or have a support person, such as a friend or family member, present.
A mediator remains a neutral third party, facilitating mediation discussions and helping the parties involved explore options, clarify issues in dispute, and work toward a negotiated outcome. While the Mediator cannot provide legal advice, the presence of lawyers ensures that participants understand the legal implications of any settlement agreements or parenting plans before finalising them.
Lawyer-assisted mediation offers the benefits of traditional mediation, such as confidentiality, a voluntary process and cost-effectiveness, while giving parties the reassurance that their rights are protected.
Mediation Costs
Mediation costs in Melbourne can vary greatly depending on whether the session is through a Family Dispute Resolution service or a private mediation provider. Private mediation is ordinarily paid by the parties involved.
Compared to court proceedings, mediation offers parties a cost-effective alternative, reducing legal costs, filing fees and the time involved in court hearings or a final hearing. In some cases, the first round of mediation may not resolve issues in dispute, or either party may need time to think over their options. Mediation can be attempted again when both parties feel ready to discuss matters again. Mediated Agreements give both parties the satisfaction of being in control of the outcome with no surprise decisions of a Judge.
When Mediation May Not Be Suitable
While mediation offers parties a valuable opportunity to reach an agreement, it is not appropriate in all situations. Mediation may be unsuitable where:
- One or both parties refuse to attend or participate in good faith
- Family violence or child abuse is involved
- Parties cannot safely communicate or negotiate
- One party is experiencing significant mental health, addiction or intellectual challenges that prevent meaningful discussion
Full financial disclosure has not been completed
When mediation doesn’t fully resolve the conflict, the next step may be applying to the Federal Circuit and Family Law Court. The Mediator can provide a report to help the court understand which issues remain unresolved, making the process more efficient.
Benefits Of Mediation vs Going To Court
Mediation offers disputing parties a confidential, voluntary process to resolve legal issues without the stress, expense, uncertainty and delays of court proceedings. Unlike a court, where a judge imposes decisions and parties may become the successful or unsuccessful party, mediation empowers people involved to reach their own agreements.
Mediation discussions allow parties to explore creative solutions for parenting plans, property settlement agreements, or other family law matters. Legal representatives can attend mediation to provide legal advice, ensuring that parties are informed while still maintaining mediation confidentiality. By participating in mediation, parties can reduce legal costs, limit court involvement, and preserve relationships that might otherwise be strained by litigation.
Even if an agreement is not reached, mediation helps narrow relevant issues for a final hearing, making the court process more focused and efficient. Overall, mediation offers parties greater control, flexibility, and the opportunity for mutually beneficial outcomes compared with going to court.
Preparing For Mediation
Preparing for mediation helps disputing parties get the most out of the process.
Parties should:
- Gather relevant documents, such as financial statements, property records or child-related information
- Consider bringing legal representatives to advise on legal issues or attend on their own behalf
- Decide whether to bring a support person, such as a friend or family member
- Identify their goals, priorities and possible compromises before the mediation session
During the mediation process, the Mediator encourages open discussion, explains ground rules, and discusses mediation confidentiality to create a safe and structured environment. Proper preparation allows parties to actively participate, reach an agreement, and potentially finalise settlement agreements or parenting plans without going to court.
Need Assistance With Mediation For Your Family Law Matter?
Mediation is a vital part of family law dispute resolution. It provides disputing parties with a voluntary, structured process guided by a neutral third party, encouraging open discussion, exploring settlement agreements, and helping parties reach an agreement without the high costs and pressures of court.
Accredited Mediators and Family Dispute Resolution practitioners support parties in preparing for mediation, discussing mediation confidentiality and formalising outcomes through consent orders or parenting plans. If you are facing family law issues, mediation offers a practical bridge between informal negotiation and the family law court, allowing parties to resolve disputes on their own behalf.
Contact the team at Pearsons Lawyers for expert guidance, legal advice or access to highly skilled mediation services in Melbourne on 1300 699 688, or via our contact form. We can assist you in preparing for mediation, ensure you are legally represented if necessary, and draft legally binding agreements after mediation is completed. Contact Pearsons for your free appointment.
