Hello. In this edition of It depends I’d like to talk to you about mediation and whether you need to attend mediation as part of your family law matter, whether it’s a property settlement or parenting matter.
What is mediation?
Mediation is a form of alternate dispute resolution where you use the assistance of a third party to try and resolve the dispute. In family law world, that generally involves the mediator being either an experienced family lawyer, family law barrister, or sometimes a former judge. Now, usually family law mediations are done in what they call a shuttle mediation, which means that the parties are kept in separate rooms and the mediator will effectively shuttle between the two. So, for example, one party will make a property settlement offer. The mediator will convey that to the other side. Let them digest and think about how they’d like to respond. And then when they’re ready to make a counterproposal, the mediator will then take that to the other room. It’s not ordinarily the case that family law mediations will occur opposite each other, even where there’s no issues of domestic violence. It’s just usually, in family law it’s just too high conflict. Parties generally, if they’re at that point, they can’t agree and so sitting opposite your former spouse and having to hear things that you don’t like and saying things to them that they’re not necessarily going to like is usually not very conducive to getting a good outcome.
Do I need to attend mediation?
It depends. It’s not compulsory to attend mediation to resolve a family law dispute. Mediation can be a great tool for people to sort things out because it forces everyone to be together, not physically in the same room together, but the same vicinity together. So, it’s a very efficient way of people making offers, making counteroffers, hearing what the other side’s saying and responding to them in a very quick way, as opposed to phone calls back and forth between different lawyers and clients and third parties or writing letters, which take time to draft and review and to go through that sort of process. So, it can be a very efficient way of resolving things, but it’s not compulsory. Sometimes parties aren’t very far apart and you can make an initial offer, get a counteroffer back and see, oh, we’re not quite there, but we’re not too far away. And so you can sort it out with another round of offers and save yourself the trouble and expense of having to go to mediation. However, if you wish to go to court, it’s compulsory for a parenting or property settlement matter that you first attempt some form of family dispute resolution, which is ordinarily mediation.
What should I do before going to mediation?
If it’s a parenting matter, you should at least try and find out what the other party’s perspective is on the major issues in dispute and you should outline what your position is. There’s no point just going to mediation for the sake of going to mediation and finding out when you’re there for the first time that there’s significant disputes about various things that you hadn’t thought about or which you previously thought were agreed. It’s usually better even if there is an agenda, for example, of what the key issues are that both of you want to sort out at the mediation. That could be a really useful way and limiting the time and making the most of the process. For property settlement matters, you want to have gone through the disclosure process first. So, exchange all relevant financial documents. What often happens is people don’t do that and they jump straight into mediation without going through disclosure first. And then what ends up happening is you’ll be there on the day of the mediation, people saying, Oh, well, I haven’t seen your 12 months of bank statements or I haven’t seen your tax returns and those sorts of things. And what you physically they’re trying to sort it out. It’s obviously a problem if you’re having to try and plow through and find financial documents and the other side has to spend time reviewing and considering what’s there. So, before you organise family law mediation for financial matters, you really need to go through all of your disclosure obligations first, make sure you’ve got all the documents you think are relevant from the other party and that you’ve given them all documents that you think are relevant in terms of your financial position.