Many people have questions about the mediation process. It is a compulsory step when there are parenting matters in dispute, hence the question, what is child custody mediation?
Separation and divorce are difficult for everyone involved: you, your ex-partner, your children, and your extended family. When emotions are high and the future is uncertain, there can be a lot of disagreement in the decision-making process, which can lead to one or both partners being unwilling to compromise or reach a conclusion that is in the best interests of the children. In this context, mediation is by far the best means of resolving parenting issues, because it can happen quickly, is inexpensive and allows you and your children to get off the emotional merry-go-round and get on with your life.
The Family Law Act 1975 (Cth) in Australia recommends that couples avoid using the courts wherever feasible and instead engage in mediation before going to court. Even if a parenting order is sought through the courts, the applicant will almost certainly be required to show that they have attempted to address their disagreements through mediation before turning to the courts for help. This is particularly the case for child custody mediation.
That said, the Family Law Courts no longer use the term “custody,” instead preferring terminology that refers to how much time a child spends with each parent and how much communication they will have. Both parents are urged to play an active role in their children’s life if it is safe for them to do so. However, reaching an agreement on subjects like health, living arrangements, income, and education can be challenging.
What is Child Custody Mediation?
Child custody mediation is a process in which separating or divorcing parents work with a neutral third party, known as a mediator, to develop a parenting plan that outlines the care arrangements for their children. In Australia, mediation is often mandatory before parties can proceed to court for parenting matters, as it is seen as a valuable tool for helping families resolve disputes and make decisions in the best interests of their children.
The primary goal of child custody mediation is to assist parents in creating a plan that prioritizes their children’s needs and well-being, while also taking into account the unique circumstances and preferences of each family. By engaging in mediation, parents can avoid the often costly, time-consuming, and emotionally draining process of litigation, and instead work collaboratively to find solutions that benefit everyone involved.
The Child Custody Mediation Process
Child custody mediation in Australia typically follows a structured process designed to facilitate open communication, problem-solving, and agreement between the parties. The key steps in the mediation process include:
Intake and assessment
The mediator will meet with each parent separately to gather information about their situation, concerns, and goals for the mediation. This step helps the mediator understand the family’s dynamics and identify any potential barriers to success.
Joint sessions
The mediator will bring the parents together for one or more joint sessions, during which they will discuss their concerns, priorities, and ideas for the parenting plan. The mediator’s role is to facilitate the conversation, keep the parties focused on their children’s needs, and help them explore options for resolution.
Private caucuses
If needed, the mediator may meet with each parent privately during the joint sessions to discuss sensitive issues or explore potential compromises. These private meetings, known as caucuses, can help the mediator gain a deeper understanding of each party’s perspective and assist them in finding common ground.
Drafting the parenting plan
Once the parents have reached an agreement on the key aspects of their parenting arrangement, the mediator will help them draft a detailed parenting plan. This plan will outline the agreed-upon terms, such as the living arrangements for the children, the division of parental responsibilities, and the processes for making decisions and resolving future disputes.
Review and finalization
The parents will have the opportunity to review the draft parenting plan with their respective lawyers, if desired, and make any necessary revisions. Once the plan is finalized, the parents can choose to have it formalized through a consent order filed with the Family Court of Australia.
Benefits of Child Custody Mediation
Child custody mediation offers numerous benefits for separating or divorcing parents and their children, including:
Child-centered focus
Mediation keeps the focus on the children’s needs and well-being, encouraging parents to prioritize their children’s best interests above their own conflicts or disagreements.
Parental control
Unlike in litigation, where a judge makes the final decision, mediation allows parents to maintain control over the outcome of their parenting arrangement. This can lead to more satisfactory and sustainable agreements, as the parents are more likely to adhere to a plan they have created themselves.
Improved communication
The mediation process promotes open and respectful communication between parents, helping them develop the skills necessary for effective co-parenting. By learning to listen to each other’s concerns and work together to find solutions, parents can lay the foundation for a more positive and cooperative relationship moving forward.
Cost and time savings
Mediation is generally less expensive and time-consuming than going to court, as it can often be completed in a matter of weeks or months, rather than the lengthy process of litigation.
Confidentiality
Mediation sessions are confidential, which means that the discussions and negotiations that take place cannot be used as evidence in court. This confidentiality can create a safer space for parents to express their concerns and explore options without fear of their words being used against them later.
Flexibility
Mediation allows for a more flexible and creative approach to problem-solving than litigation. Parents can explore a wide range of options and tailor their parenting plan to their family’s unique needs and circumstances.
Reduced stress on children
By avoiding the adversarial nature of litigation and working together to create a parenting plan, parents can minimize the stress and emotional impact of the separation on their children.
The Role of the Mediator in Child Custody Mediation
The mediator plays a crucial role in the child custody mediation process, acting as a neutral facilitator to guide the parents towards a mutually acceptable agreement. Some key responsibilities of the mediator include:
Creating a safe and structured environment
The mediator ensures that the mediation sessions are conducted in a safe, respectful, and productive manner, setting ground rules and managing any potential conflicts or power imbalances between the parties.
Facilitating communication
The mediator helps the parents communicate effectively, encouraging active listening, clarifying misunderstandings, and promoting a focus on their children’s needs.
Assisting with problem-solving
The mediator guides the parents through the process of identifying their concerns, brainstorming options, and evaluating potential solutions. They may offer suggestions or insights based on their experience but will not make decisions for the parents.
Providing information and resources
The mediator can provide the parents with information about the legal and practical aspects of child custody and direct them to additional resources, such as parenting classes or counseling services, as needed.
Maintaining impartiality
The mediator must remain neutral throughout the process, avoiding any bias or preference towards either party. Their role is to support the parents in reaching their own agreement, not to determine what is “fair” or “right.”
Child custody mediation is a valuable process for separating or divorcing parents in Australia, offering a collaborative and child-focused approach to creating parenting plans. By working with a neutral mediator, parents can avoid the adversarial nature of litigation and instead focus on finding solutions that prioritize their children’s well-being.
Mediation offers numerous benefits, including cost and time savings, improved communication, flexibility, and reduced stress on children. By participating in mediation, parents can maintain control over the outcome of their parenting arrangement and lay the foundation for a more positive co-parenting relationship.
As the importance of alternative dispute resolution continues to be recognised in Australia, child custody mediation is likely to play an increasingly vital role in helping families navigate the challenges of separation and divorce. By embracing this process and committing to working together in the best interests of their children, parents can create parenting plans that support their children’s healthy development and promote a more stable and nurturing family environment.
What steps should I take to find a mediator?
Mediation comes in a variety of forms. The use of Family Relationship Centres, Family Relationships Australia, or other public and community-based services can be cost-effective. However with these organisations there can often be significant delays getting a mediation and if your parenting matter is relatively complex, they may not have the skills to effectively mediate the issues. The other issue can be that once an agreement has been made between you and your former partner, it’s recommended that you make it legally binding. To do this, you will need to ensure that the mediator constructs the agreement that in turn, a family lawyer can draft into a legally enforceable document. We call these consent orders
The alternative to mediation is of course litigation. It’s emotionally draining, expensive and on average will take up to 3 years to resolve.
At Mediations Australia, we have a team of mediators and family lawyers who work collaboratively together.
When is mediation not an option?
Mediation isn’t always the best option, especially when family violence is involved. In such circumstances, having the assistance of a lawyer can help you deal successfully with difficult matters and defend your rights. If there are allegations of abuse, your lawyer can help you decide if the issue should be resolved in court rather than through mediation.
Should I Consult a Family Lawyer before doing Child Custody Mediation?
The most effective mediation occurs when both parties have first gotten legal guidance regarding their specific situation. You’ll be much better prepared if you know what to expect, what your alternatives are, and how a court might handle your case. By finding this out ahead of time and understanding your legal stance, both parties will be more educated and will have evaluated what they are and aren’t ready to compromise on prior to discussions.
Your lawyer can attend mediation sessions and provide you with advice as the process unfolds. When sensitive and essential matters are discussed, mediation can become emotional or tense, and having your lawyer present guarantees that you have a say and that your interests and those of your children are prioritised throughout.
At Mediations Australia, we’re well-positioned to help because we have both family lawyers and mediators who work together.
How to Go About Child Custody Mediation
Effective mediation requires planning. You can approach mediation with a more open mind, ready to listen and negotiate a mutually satisfactory arrangement, with the help of your lawyer or directly through a mediator. Remember to think about your children and their best interests, as well as the effects of conflict on them. Importantly, you should use mediation to resolve parenting difficulties rather than bringing up other marital issues.
Child custody mediation isn’t always easy, but if you remember that you’re there to find a solution for your children and follow your lawyer’s and mediator’s recommendations, you’ll be far more likely to achieve an agreement that works for both of you.
What issues can be resolved through mediation?
Living arrangements or relocation, child support, health issues, education and religion, how time will be split between parents and how school holidays will be spent, overseas travel, and the division of payments for things like after-school activities are some of the most common topics that are discussed and resolved in child custody mediation.
What is the child custody mediation procedure?
When a mediator is chosen, each parent is usually invited to a separate pre-mediation meeting to determine whether the case is appropriate for mediation. If you have hired a lawyer, they will tell you if this is the case and what choices are available to you.
Both parties can then be requested to compose a brief statement to bring to the first meeting, describing their goals for mediation.
Each mediation session can last anything from three hours to a full day. Some of the more serious difficulties may require multiple sessions to overcome. If all parties arrive prepared and eager to compromise, this is certainly hastened.
If no agreement can be reached during mediation, the mediator will issue a certificate. After then, either parent can bring a parenting case to court. If one parent fails to make a sincere effort to address the conflict if a parent fails to appear, or for any other reason, a certificate will be granted.
How Mediations Australia Can Help
At Mediations Australia, irrespective of where you are in Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, Brisbane and all other locations. WE offer a free, no-obligation consultation with a family lawyer or mediator. Get legal advice from us today!
