Family law mediation: what to expect and how to prepare

If you and your former partner cannot agree about parenting arrangements or division of assets, mediation may help you find a practical way forward without asking a Court to decide everything for you.

An independent mediator helps you discuss the issues, consider options and work towards agreement. Mediation can happen before Court proceedings start or while a case is already underway.

Which type of mediation may suit you?

• Family Dispute Resolution: usually for parenting cases, without lawyers in the room.
• Private mediation: usually with each party’s lawyer present. Can be used for parenting and/or property cases.
• Court-based Family Dispute Resolution: for parenting cases already before the Court.
• Conciliation Conference: for property cases already before the Court.

Do you need to try mediation first?

If your dispute is about children, you will usually need to make a genuine effort to resolve it through Family Dispute Resolution or Private Mediation before applying to the Federal Circuit and Family Court of Australia. There are some exceptions.

After the process, the practitioner may give you a section 60I certificate if:

• you attended but did not reach agreement;
• mediation was not appropriate; or
• the other party did not attend.

You will need to file this certificate with a parenting application to the Court.

A certificate may not be required for property-only matters, consent orders or where an exception applies. A family lawyer can explain the process relevant to your circumstances.

Family Dispute Resolution without lawyers

This is where you and your former partner meet with an independent Family Dispute Resolution practitioner. They will help you identify the main issues, communicate clearly and explore possible solutions.

You will usually each attend a separate intake appointment before a joint session. The joint session often lasts two to three hours. More sessions can be arranged if needed.

Your lawyer will not usually attend, but they can help you prepare and review any proposed offers or agreements before you sign.

Private mediation with lawyers

At a private mediation, you and your former partner each have a lawyer present. An independent mediator guides the negotiations. A barrister may also attend in a complex matter.

You may stay in separate rooms or online spaces while the mediator moves between you. This is called shuttle mediation. It can be useful where communication is difficult, conflict is high or there are safety concerns.

Your lawyer can advise you as proposals change and help you make informed decisions during the mediation.

Your lawyer can also:

• explain your options and likely next steps;
• communicate offers on your instructions; and
• help record any agreement in the appropriate legal form.

If your parenting matter is already in Court

The Court may refer you to a Family Dispute Resolution conference. A Court Registrar runs the conference, and a Court Child Expert may also be involved.

The aim is to help you discuss the parenting issues and see whether agreement is possible.

The process usually includes:

A short telephone conference: You and your lawyer explain the main issues and your priorities. The Registrar explains how the process will work.

A longer negotiation session: This often lasts about four hours and may be held together or by shuttle. The format will depend on what is safe and suitable for your family.

If you reach agreement, the Registrar may be able to make interim or final orders without another court event.

If your property matter is already in Court

The Court may arrange a Conciliation Conference. This gives you and your former partner an opportunity to negotiate with the help of a Registrar and, where possible, avoid a final hearing.

Before the conference, you must prepare and exchange the documents required by the Court. Your family lawyer will assist in preparing your position paper and ensuring financial disclosure and valuations have been conducted.

Why choose mediation?

Mediation may help you:

• save time, legal costs and stress;
• focus on practical solutions;
• keep more control over the outcome; and
• narrow the issues, even if you do not agree on everything.

How can you prepare?

• Write down the main issues you want to resolve.
• Gather the documents you have been asked to provide.
• Think about what is most important to you and where you may be flexible.
• If children are involved, focus on their safety, stability and day-to-day needs.
• Ask your lawyer what to expect and how any agreement may be recorded.

What happens next?

A family lawyer can help you understand which mediation process may suit your circumstances, prepare for the session and formalise any agreement. To discuss a parenting or property matter, contact Coulter Legal’s Family & Relationship Law team on (03) 5273 5273 to arrange an initial appointment.