Our family law matters often involve deeply personal and emotional issues. When marriages or de facto relationships break down, the resulting disputes can be complex and challenging.
The Family Law Act seeks to remove the emotional barriers to resolving family law disputes in several ways. The right to access a ‘no fault’ divorce, the prohibition on publishing details of family law cases, the concept of full & frank disclosure are devices which assist families to resolve their disputes without resorting to a contested trial in front of a judge.
However, over the last 15 – 20 years, mediation has emerged as a valuable tool in resolving both parenting and financial separation disputes. This alternative dispute resolution process offers numerous benefits, making it an attractive option for many families. At Bradshaw Lawyers, we advocate for mediation as a step in all family law matters for several reasons; the most important is that we assist families resolve their disputes at over 95% our mediations where our family lawyers advice and attend with clients. We can attend mediations with you anywhere within Brisbane and the Moreton Bay region.
Mediation is a significant step in family disputes and while not compulsory, it is the exceptional case in which mediation does not assist, even where it might not be successful, it assists the parties narrow the issues they cannot agree on. This can have the effect of reducing the court time needed.
Mediation can be used in any type of dispute. Family Lawyers use mediation to assist clients solve a range of issues as diverse as parenting disputes (Who a child lives with, what school they attend, whether they can travel with a parent and where, what cultural activities they should experience) and financial disputes (who retains certain assets, the size of a settlement payment and whether it might involve a superannuation split, whether an investment should be retained or sold, and how the tax consequences should be dealt with). But mediation can also assist where discrete issues need to be addressed such as which assets should be valued and by whom, whether funds spent by a party should be treated as an add-back or not, and how to deal with communication issues between the parties which prevent co-parenting from succeeding.
There are many reasons why Bradshaw Lawyers advises clients to participate in mediation:
1. Structured, with an independent voice: Mediation involves an experienced, neutral person (the mediator) who listens to both participants and attempts to find the issues on which the parties agree. The use of an experienced legal practitioner (or even an ex-judge) as mediator can sometimes have the effect of a reality test for the arguments being used. While an experienced mediator will never tell you what their opinion might be, they often can assist the parties in understanding how a court might deal with the issues being raised by you or the other party.
2. Confidentiality and Privacy: Mediation sessions are confidential, unlike court proceedings, which are public. This confidentiality allows parties to tackle sensitive issues openly and honestly, promoting a more constructive dialogue. It may not solve all the issues, but it allows each party to negotiate without any of the concessions offered being used against them if the mediation is not successful.
3. Control Over Outcomes: The most important feature of mediation is that the Parties retain agency over their own dispute. They control the decisions made in mediation, compared to where findings and decisions are imposed by a judge at trial. This empowerment often leads to agreements that better suit the parties' specific needs and circumstances. It permits the parties to build a settlement, which sometimes is important if the parties are to co-parent. At trial, the adversarial nature of the court procedure often prevents constructive resolution into the future.
4. Cost-Effectiveness: There is no avoiding that a trial is expensive; there are lawyers and experts who all have their own costs. Mediation is often attempted early, and so while it may appear to be cost-heavy, it is an efficient use of funds when successful (and as you’ve read above, it has a very high success rate). There are other forms of dispute resolution, including arbitration. Each of these has their place, but mediation is one of the few processes which can assist resolution in a cost effective manner even if a second mediation is required.
5. Time Efficiency: While your lawyer will need to prepare for mediation, the preparation is different to that required for the formal procedures of a contested final hearing. Mediation can often be conducted successfully even where the parties haven’t yet had all assets formally valued. It requires the parties to accept that an outcome negotiated between them during which both parties have compromised can be a better (and certainly a quicker) outcome than awaiting a trial date, which might be over 12 months away.
6. Reduced Emotional Strain: Family law disputes are emotionally taxing. Resolving the dispute can dissipate that stress almost overnight. There are many forms of mediation (round-tables where everyone sits at the same table, or shuttles – where the lawyers and mediator move between different rooms but the parties never see each other). The right format can empower you to be able to make the right decisions for your family. Mediation should offer a supportive environment where a mediator facilitates constructive communication, helping to reduce conflict and emotional strain. Getting the right mediator can assist this process significantly.
7. Preservation of Relationships: In family law matters, particularly those involving children, preserving relationships is crucial. Mediation is able to focus on collaboration rather than adversarial confrontation. It helps preserve relationships, which is crucial, especially when ongoing communication is necessary for co-parenting. The consequences of cross-examination and the adversarial trial is not the best place from which to preserve or rebuild a co-parenting relationship. By fostering communication and understanding, mediation can lay the groundwork for healthier post-separation relationships, which is essential for co-parenting and the overall well-being of the children involved.
8. Flexibility and Creativity: Mediation allows the parties flexibility and creativity when presenting solutions to each other. When done properly, successive offers can build upon each other to reach towards a solution. The rigid structure of imposed court orders provides no flexibility. Mediation therefore enables parties to tailor agreements to their unique circumstances. This flexibility can result in more practical and innovative solutions that better meet the needs of all parties. For example, in parenting arrangements, mediation can accommodate non-traditional schedules or unique family dynamics that a court might not consider.
9. Voluntary Nature: Mediation is a voluntary process, meaning that both parties must agree to participate. Even where parties are ordered to attend, it is naïve to ignore that only attendance, not engagement can be ordered. Mediation is the opportunity given to each party to reach out across the divide and end the fight.
This voluntary aspect often leads to greater commitment to the process and the agreements reached. When parties choose to mediate, they are more likely to engage constructively and work towards a resolution. This voluntary participation contrasts with the compulsory nature of court proceedings, where parties may feel forced into adversarial positions.
10. Focus on Future Needs: Mediation encourages parties to focus on their future needs rather than past grievances. This forward-looking approach can be particularly beneficial in family law matters, where ongoing relationships and future cooperation are often necessary. By emphasizing future needs and interests, mediation helps parties move beyond blame and conflict, fostering a more positive and constructive outlook.
11. Legal Support & Guidance: While mediation is non-adversarial, parties can still seek legal advice to ensure any agreements reached are fair and legally sound, enhancing confidence in the process. It is therefore so important to select a lawyer who will guide you towards a resolution rather than one who will add to the gulf between you. Bradshaw Lawyers believes in the strength of party driven resolution and seeks to provide our clients with commercially orientated solutions which avoid entrenched disagreement, but not at any cost.
12. Compliance & Enforcement: Agreements reached through mediation tend to have higher compliance rates compared to court orders. Because the parties have actively participated in creating the agreement, they are more likely to feel committed to upholding its terms. This sense of ownership can reduce the likelihood of future disputes and the need for enforcement actions. Additionally, mediated agreements can be made legally binding, providing an extra layer of security and certainty.
13. Family Dispute Resolution Practitioners: If your dispute involves any form of parenting, it is likely you will need a mediator who is a Family Dispute Resolution Practitioner. Family Dispute Resolution (FDR) is a specific type of mediation used in family law matters, particularly those involving children. Family Dispute Resolution Practitioners (FDRPs) are specially trained mediators who assist families in resolving parenting disputes. The Family Law Act requires parties to attempt FDR before applying to the court for parenting orders, emphasizing the importance of mediation in the family law system. FDRPs play a critical role in guiding parties through the mediation process, ensuring that discussions remain focused and productive. If your dispute involves both parenting and financial matters, it is important to choose a mediator who is also a FDRP.
There are always circumstances which might mean mediation may not be suitable for your case, particularly if there are allegations of family violence or significant power imbalances. It doesn’t mean that a properly conducted mediation cannot be undertaken if there has been family violence but it is important to consider whether the benefits of mediation can be present.
But for the majority of family separation disputes, its benefits in promoting understanding, reducing conflict, and maintaining privacy make it a highly valuable tool in resolving family law disputes. It provides families with a less adversarial and more supportive pathway to resolving their differences, emphasizing the well-being of all parties involved, especially children.
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