So, you’ve been invited to mediation or you’ve decided you need to mediate because your lawyer or your friends have told you that’s what you need.
But what the heck is mediation and what happens AT mediation?
Very simplistically, mediation is a negotiation process of which there are a few different types:
- Transformative – the parties are encouraged to explore and discuss the underlying issues with a view to repairing the relationship;
- Evaluative – parties are encouraged to reach settlement based upon legal entitlements or rights within a range;
- Settlement – parties are encouraged to compromise in order to settle the dispute;
- Facilitative – parties are encouraged to negotiate based on their needs or interests. Instead of their strict legal rights.
In family law in Australia we mostly utilise the facilitative process. Aspects of the evaluative and settlement processes may find their way into a lawyer assisted negotiation session. It is rare for transformative mediation to be used in divorce mediation.
But what does all this mean?
It means that a person who doesn’t have a stake in the outcome, will guide you through a process with the aim of supporting you to reach agreements that you both can live with.
Agreements can be short or long-term in nature and can encompass everything from how much time your children will spend with each of you, whether the pets stay with the adults or move with the children, and what you should do with the assets and liabilities that have been gathered during the relationship.
Depending on what is decided by the mediator (or Family Dispute Resolution Practitioner) as the best way forward, your mediation may be conducted with you all in the same room, in different rooms, or a variation of being in the same and different rooms. Depending on your location, you might even participate in telephone or video mediation if that’s more practical or suitable.
The facilitative model of mediation has 6 stages:
- Mediator opening – this is where the mediator reintroduces themselves, reminds you of the guidelines around being polite, tells you about confidentiality, general housekeeping issues like tea and coffee facilities and bathrooms, and outlines the time required for the mediation session. Once this is done they will formally request your consent to participate in the mediation.
- Agenda formation – the mediator will speak with each of you, one at a time, in order to formulate the agenda items. The other party will be asked to remain quite and make notes about anything they would like to make comment on or disagree with. Each party will be given the same opportunity to explain the items for discussion that are important to them. The mediator will then formulate the agenda from what each party has highlighted are the important topics. For example, if you’ve said you want to make sure the children spend equal time with each of you, the mediator might write an agenda item that looks something like this: What to do about where the children will live; or How much time the children will spend with Mum and Dad.
The last three stages, while being separate, often cross over and you might move between each fluidly or directly. If your exploration of a topic is progressing well and you’re begun to negotiate and even reach agreement, the mediator is unlikely to stop you once you’ve explored the options of one issue so that you can explore options for a different topic. It’s more likely that you’ll negotiate and possibly reach agreement on some items, but need to come back to others either while they’re being explored or when you reach a block in the negotiation.
- Agreement formation
Any agreements you reach can be written out and signed by both parties and the mediator. This is called a Parenting Plan. It is not a legally binding document, but if you found yourself in court for a parenting or property matter and previously had a Parenting Plan, a Judge may consider the agreement when forming and Order. However, a Parenting Plan CANNOT be legally enforced. This means that you can’t go to the court and ask them to uphold a Parenting Plan as it is not an Order of the Court.
If you would like your agreements to be legally enforceable you need to have them made into Consent Orders
Mediation is not the be all and end all. If you don’t reach agreement at mediation, which you may not, especially if your sessions are short, you’re unprepared, or the issues are more complex than you were aware, you may need more than one mediation session. This is okay, it doesn’t mean you’ve failed at mediation or that you won’t eventually reach agreement. It just means you need more time to discuss things, more thinking time, more preparation or a new mediator!
Alternatively, you may find your mediator thinks the best place for the resolution of the issues is Court. However, before you can make an application to the Court in Australia (either the Federal Circuit Court or the Family Court) you must under law have first attempted to resolve your matter through Family Dispute Resolution which is the name the Family Law Act gives (family) mediation. Mediators who are specialist family law mediators are called Family Dispute Resolution Practitioners (FDRP’s) and are registered by the Australian Government Attorney-General?s Department.? FDRP’s are governed by the Family Law Act (1975) and must have knowledge of other relevant legislation.
Kirsty is an accredited Mediator and registered Family Dispute Resolution Practitioner. Her experience spans property and children’s matters in child focussed, child inclusive and lawyer-assisted mediation. Whether face-to-face, over the telephone and via the internet, Co-Parenting for Your Kids focus is to provide timely support to separating and divorced families without it costing the earth.