Mediation of Family Disputes
Mediation of Family Disputes
Mediation is a process whereby two or more parties attempt to reach a resolution with the assistance of a mediator. In circumstances of relationship breakdown, the matters to be resolved usually include children’s issues or financial matters, or both.
The purpose of mediation is to achieve a resolution of the dispute that is acceptable to both parties. Resolution can be formalised by way of a binding agreement or by an application for Court orders by consent.
The process of mediation allows the needs and interests of each party to be discussed and explored in a non-acrimonious environment, thereby allowing the parties to formulate and test various options. Discussions are confidential until such time as an agreement is reached (except in very limited circumstances when mandatory reporting is required).
Mediation is a process that enables the parties to reach their own resolution without the need for the imposition of orders by a Judicial Officer. This is of particular significance where parents are attempting to agree arrangements for their children. Whilst mediation involves the costs of legal representation (if solicitors are to attend with the parties) and the costs of a mediator, such costs are usually significantly less than the costs of lengthy Court proceedings.
The Family Court of Western Australia requires parties who instruct solicitors to consider mediation prior to commencement of Family Court proceedings for property matters. Likewise, the Family Court requires mediation to take place prior to commencement of Family Court proceedings to seek orders relating to children’s issues, except in cases of a risk or urgency.
Mediation can take place with the assistance of a solicitor for each party as well as a mediator, with the legal representatives advising each party and assisting with options from time to time during the process. This is usually known as Alternative Dispute Resolution or Solicitor Assisted mediation. A mediator can also hold private sessions with each party and their legal representative during the course of a mediation.
In certain circumstances, some practitioners are able to offer child inclusive mediation where appropriate, and the children are of an age to have input.
Mediation is not necessarily limited to one session. It can be undertaken over a number of different occasions, to allow for partial settlement, the obtaining of further information, ascertaining of financial values (e.g. sale proceeds of real estate) or other matters.
Mediation can often avoid the increase of, or diminish, acrimony between parties, and assist to rebuild a working relationship between separated parents. This is often of considerable benefit to the children involved.
Statistically there is evidence that parties who have reached a mediated resolution remain satisfied with such decisions, in comparison with judicial decisions reached through the Family Court, where both parties are often dissatisfied with the outcome.