As a family lawyer with 20+ years of experience, I help clients choose between mediation and litigation daily. This comprehensive guide will help you understand which path best suits your situation.

In family law cases in Australia, parties have the option of resolving their disputes through either mediation or litigation. Both approaches have their own benefits and drawbacks, and the right option for a particular case will depend on the specific circumstances of the case.

Mediation is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. The mediator does not have the power to make decisions or impose settlements, but can help the parties reach an agreement on their own. Mediation can be faster and less expensive than litigation, and can also be less stressful and more amicable for the parties.

Litigation is a legal process in which the parties present their case to a judge or jury, and a decision is made based on the evidence and arguments presented. Litigation can be more formal and adversarial than mediation, and can be more expensive and time-consuming. However, it may be necessary if the parties are unable to reach an agreement through mediation or other means.

When deciding whether to pursue mediation or litigation in a family law case, it is important to consider the specific issues in the case, the parties’ goals and priorities, and the resources available to them. A lawyer or mediator can help you understand your options and make an informed decision.

The History of Mediation

Mediation is a process in which a trained mediator helps parties to a dispute communicate and explore options for resolving their differences. The use of mediation as a means of resolving disputes has a long history, and has been practiced in various forms in many different cultures around the world.

One of the earliest known examples of mediation is the use of the “wise woman” or “wise man” in ancient societies, who would be called upon to resolve disputes within the community. The process of mediation has also been used in traditional systems of justice, such as the indigenous justice systems of many cultures.

In more recent times, the formal use of mediation as a means of resolving disputes has developed into a distinct profession, with trained mediators facilitating the resolution of disputes in a wide range of contexts, including family law, workplace disputes, and commercial disputes.

Mediation has gained popularity as an alternative to litigation, as it can be faster, less expensive, and less adversarial than going to court. It is now widely recognised as an effective means of resolving disputes, and is used in many countries around the world.

Does Mediation Work?

Mediation can be an effective way to resolve disputes in a wide range of contexts, including family law cases. Mediation is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. The mediator does not have the power to make decisions or impose settlements, but can help the parties reach an agreement on their own.

Mediation can be particularly effective in family law cases because it allows the parties to address the underlying issues that have led to the dispute, and to come up with solutions that meet their needs and the needs of any children involved. Mediation can also be faster and less expensive than litigation, and can be less stressful and more amicable for the parties.

That being said, mediation is not a one-size-fits-all solution, and it may not be appropriate in all cases. In some cases, the parties may be too far apart in their positions or may have other issues that make it difficult to reach an agreement. In these situations, litigation may be necessary.

Overall, whether mediation will work in a particular case will depend on a variety of factors, including the parties’ willingness to communicate and negotiate, the complexity of the issues, and the resources available to the parties.

The Mediation Methodology in Family Law

In family law cases in Australia, mediation is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. The mediator does not have the power to make decisions or impose settlements, but can help the parties reach an agreement on their own.

There are several different approaches to mediation, but most mediators follow a similar process:

• Intake: The mediator will meet with the parties separately to gather information about the case and to assess whether mediation is an appropriate option.
• Joint session: The mediator will bring the parties together for a joint session to discuss the issues in the case and to explore potential solutions. The mediator may use a variety of techniques, such as active listening, questioning, and reframing, to facilitate communication and help the parties understand each other’s perspectives.
• Breakout sessions: If necessary, the mediator may have the parties work separately in breakout sessions to consider different options or to negotiate a settlement.
• Closing: If the parties are able to reach an agreement, the mediator will help them draft a written agreement that reflects the terms of the settlement. If the parties are unable to reach an agreement, the mediator may provide them with feedback or refer them to other resources, such as a lawyer or a support group.

Overall, the goal of mediation is to help the parties resolve their disputes in a way that is mutually satisfactory and that takes into account their needs and the needs of any children involved.

Getting Mediation Ready

Being “mediation ready” in a family law case means being prepared and willing to participate in mediation, which is a voluntary, confidential process in which a trained mediator helps the parties communicate and explore options for resolving their disputes. Here are a few steps you can take to ensure that you are “mediation ready”:

• Understand the process: Familiarize yourself with how mediation works and what to expect. You may want to speak to a lawyer or mediator to get a better understanding of the process.
• Identify your goals: Think about what you want to achieve through the mediation process and what is most important to you. This will help you focus on the issues that matter most and be prepared to negotiate a settlement.
• Gather relevant information: Make sure you have all of the information that you will need to present to the mediator, such as financial statements, parenting plans, and any other relevant documents.
• Be open to compromise: Mediation is about finding a mutually satisfactory solution, so be prepared to consider different options and to compromise on certain issues.
• Be respectful: Mediation is a collaborative process, so it is important to approach the process with respect and to be open to the other party’s perspective.
• By following these steps, you can help ensure that the mediation process is productive and that you are able to reach an agreement that meets your needs and the needs of any children involved.

The Stress of Family Law Litigation

Litigation in family law cases can be a stressful and emotionally challenging experience for all parties involved. The process can be time-consuming, costly, and adversarial, and it can be difficult to predict the outcome of a case.

There are several factors that can contribute to the stress of family law litigation:

• The uncertainty of the outcome: When a case goes to trial, the parties are at the mercy of the judge or jury, and it can be difficult to predict how the case will be decided. This uncertainty can be stressful for all parties.
• The cost of litigation: Litigation can be expensive, and the parties may have to pay for legal fees, court costs, and other expenses. This can be a financial burden and can add to the stress of the process.
• The emotional toll: Family law cases often involve sensitive and emotional issues, such as child custody and property division. The process of litigating these issues can be emotionally draining, and can take a toll on the parties and any children involved.
• The impact on relationships: Litigation can be adversarial and can strain relationships between the parties, which can be particularly difficult if the parties have children together or if they have a long history together.

Overall, the stress of family law litigation can be significant, and it is important for the parties to have support and resources to help them manage their emotions and navigate the process.

The Benefits of Mediation

Mediation can be an effective way to resolve conflicts because it allows the parties involved to have more control over the outcome of their dispute, as opposed to having a resolution imposed on them by a judge or jury in a litigation process.

There are several reasons why mediation may be a better option than litigation:

• Cost: Mediation is typically less expensive than litigation, as it involves fewer legal fees and expenses.
• Time: Mediation is often quicker than litigation, as it does not involve the same level of pre-trial procedures and discovery.
• Privacy: Mediation is generally a more private process than litigation, as it is held in a confidential setting and the parties are able to control who is present.
• Control: In mediation, the parties are able to have more control over the outcome of their dispute, as they are able to negotiate and come to an agreement that works for them. In litigation, the outcome is decided by a judge or jury.
• Relationships: Mediation can help preserve relationships between the parties involved, as it allows them to communicate and work towards a resolution rather than engaging in a combative legal process.

Overall, mediation can be a useful tool for resolving disputes in a cost-effective, timely, and private manner, while also helping to preserve relationships between the parties involved.

At Mediations Australia, regardless of what is best for your circumstance, We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, Brisbane and all other locations in Australia. Get legal advice from us today!

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Mediation in recent years has been a mandatory step to resolving family law disputes. It is required under the relevant legislation, in this case, the Family Law Act 1975 that separating couples need to show the court that they have made a genuine attempt to resolve the dispute through mediation or family dispute resolution.

What is a Section 60I Certificate?

For a couple to progress their family law matter to court, they need to obtain a Section 60I Certificate from a registered Family Dispute Resolution Practitioner. At Mediations Australia, our Sunshine mediators are all approved Family Dispute Resolution Practitioners.

When it comes to a Section 60I Certificate, there are essentially 5 certificates that can be issued by one of our mediators.

1. You didn’t participate in the mediation because your former partner refused or failed to attend;
2. You didn’t attend on the advice of the Family Dispute Resolution Practitioner that your dispute was not suitable;
3. You did not attend and you and your former partner did not make a genuine effort to resolve the dispute;
4. You did attend the mediation but the other party, or you, did not make a genuine effort to resolve the disputes;
5. You and your former partner started the mediation but did not complete it on the advice of the Family Dispute Resolution Practitioner.

Once you have the Section 60I Certificate from one of Mediations Australia’s Family Dispute Resolution Practitioners, the next step is to have it filed with the Court.

At Mediations Australia, we can assist you filing the certificate in court.

Can You Be Exempted from Family Dispute Resolution?

According to section 60I(9) of the Family Law Act 1975, there are circumstances where the court will not require the certificate to progress your family law dispute.

1. In circumstances where the matter is urgent;
2. In circumstances where one party is unable to participate effectively;
3. In circumstances where the application relates to a recent or existing order;
4. In circumstances where the Court believes there has been family violence or child abuse.

If you have any questions about the Section 60I Certificate or simply need the certificate to progress your family law dispute, please contact us for a free, initial, no-obligation consultation.

As much as we want to make relationships work, there are times when it is difficult for those involved to resolve issues on their own. When it comes to parenting and property matters post-separation, unfortunately, emotions can override common sense. The consequences of which can be extraordinarily expensive and lengthy. The bottom line is that you want to avoid litigation at all costs and resolve the issues in dispute with mediation. However, that can prove difficult, particularly when one party is willing and the other is not.

What do you do about this if you’re the willing party?

Choose a Mediator that you are both comfortable with

The mediator’s role is to get the parties to compromise or agree to the terms of the settlement. That is why, when choosing a mediator, it should be someone that your former partner is comfortable with, someone they can freely express themselves to so that the process is not too emotionally painstaking. At Mediations Australia, our mediator will consult with both parties prior to each mediation.

Clarify the Focus of Mediation

Sometimes, a person is reluctant to undergo mediation because they do not know the true purpose of it. Some think that mediation is a form of litigation. Others may wrongly perceive that the costs will be similar to that of legal action. In order to convince your ex-partner to consider mediation, help them understand that this is an out-of-court action and that the sooner the issues are resolved, the sooner everyone can move on. Pivotal to this of course is ensuring that there is clarity of the issues that are in dispute. When emotion is overwhelming, it can distort the real issues that need resolution. A free, initial consultation with one of our mediators will assist you both to understand what really is in dispute.

Mediation is not counselling

Another misconception of mediation is that it is equivalent to counseling where the counselor aims to bring back the ex-partners together. Mediation is not about reconciling the relationship, nor does it deal with emotional issues. The primary objective of mediation is to identify the issues in dispute and formalise an agreement between you both that resolves the issues.

Mediation Gives You More Control Over the Outcome

Mediation, in comparison to litigation, gives the parties more control over the terms of the settlement, hence, they are much happier with the result of their resolution compared to “litigation” where the judge solely decides the outcome of the case and the parties have no say with regard to the result.

You Don’t Need to Be in the Same Room

Often an impediment to mediation can be the misconception that the mediation is facilitated around a table. For most mediations, this does not occur. In fact, most mediations occur in what is described as a shuttle format. This means that the mediation will be done via zoom or video conference and you will not see the other party or talk with them. Instead, the mediator will work between you both trying to reach a resolution.

What to do next

The best way to have your former partner agree to mediation is through the provision of information. A great way to have them informed is simply to send a link to this website. Also, at Mediations Australia, should you or your former partner have questions about the process, we can answer them for you at no cost.

If you would like to further discuss any of the issues raised in this article, contact our expert Melbourne, Perth, Brisbane, Sydney mediation team today. Mediations Australia exists to help people stay out of court and resolve their issues in a faster, cheaper and more effective way.

Mediation is a proven way for people to avoid going to court. Family law mediation, in particular, can save people who are going through the emotional trauma of a relationship ending a lot of stress, time and money because of its high success rate.

The reason this form of negotiation works is because it brings a couple together in a structured but informal environment to clearly and calmly discuss the issues between them, guided by a neutral third party in the form of an expert best mediator.

This voluntary method takes away the sometimes overbearing influence of lawyers and the adversarial nature of the court environment and instead gives control to the former couple to make their own decisions about how best to separate their lives and move forward.

But like anything in life, preparation is the key. Family law mediation requires some prior planning and work by each party in order for it to be successful. Here are a few things to take note of…

Work out the key issues beforehand

It’s more than likely that both of you will know the main areas of disagreement or contention arising from the separation. These could relate to the children from the relationship, property matters, finances, or many other possible topics.

What’s important is that you are clear about which issues you wish to raise for discussion during the mediation. Making a list and perhaps ranking each issue by priority or importance is one way of ordering your thoughts.

Ideally, you provide this list of topics to your ex-spouse ahead of the mediation session so that they can be similarly prepared and ready to constructively discuss each area of disagreement.

Have your documents organised

In support of the issues you wish to try and resolve through mediation, it’s wise to have all relevant documentation organised and at hand before the appointment.

If you’re discussing property and financial matters, this could mean having valuations, bank statements and tax returns with you. If you’re discussing child custody matters, it will be beneficial to have any child support assessment documents with you, for example.

Again, it’s good practice to make sure your ex-spouse has copies of these documents before the mediation appointment. Producing ‘surprise’ documents on the day can lead to a breakdown of negotiations, wasting everyone’s time and money.

Take a realistic view of your options

Working out the issues that need to be addressed is one thing, but deciding the best course of action to take in resolving them is an altogether different proposition.

It’s best to discuss the various options that may arise with a legal professional before the mediation appointment so that you have some certainty about which options are preferable and realistic. For instance, if you plan to suggest buying out your ex-partner’s share of the family home, it’s best to know whether you will have the financial capability to do so before the mediation.

Similarly, with child custody matters, it’s advisable to properly understand what your children’s preferences are in terms of shared living arrangements and how they can be achieved.

It’s important in undertaking this process to think about how your ex-partner will respond, and what they may ask for in return. By doing so you will be more prepared to respond effectively and appropriately during the mediation.

Be prepared to give some ground

No one gets everything they want through mediation. But unlike court decisions, which usually produce a clear ‘winner’ and ‘loser’, a settlement negotiated through family law mediation provides both parties with a resolution they can live by.

Naturally, this process involves some compromise – that’s what negotiation is. It’s best to be prepared ahead of the mediation appointment and understand where you are willing to give some ground on the relevant issues… as well as where you are not.

Our expert Gold Coast mediation specialists can provide helpful advice and guidance on all the issues raised in this article to ensure you are properly prepared for mediation. By doing so, you can take the benefit from mediation’s best features: a quick, affordable and legally binding agreement that allows you to move on with your life.

When a couple’s relationship ends, things can become so bitter and emotional that people can think going to court is the only way to resolve the issues between them, including the custody and raising of any children from the union.

But fighting through the court is generally a drawn-out, costly and adversarial process that can emotionally damage the children, ruin a future civil relationship between the ex-partners, and produce an outcome that is not just and equitable to both parties.

Here are the five reasons why participating in family law mediation to resolve child custody disputes is a better way forward.

Mediation is less stressful because there’s Less Conflict

The mediation process empowers the former partners to discuss the relevant issues, canvass options to resolve them and come up with their own mutually agreeable parenting plan to address child custody. Whereas mediation is collaborative in nature, pursuing your ex-partner through the court can create more conflict and distress for all members of the family. Mediation focuses the parties on finding a solution that works for both of them and, most importantly, is in the best interests of the children.

It’s better for the Kids

Adults often forget how much children notice and pick up when their parents fight. The worry about their living arrangements and the disruption to their normal routines when parents split up can be even more damaging. Unlike court, mediation provides a calm, child-focused environment in which the estranged adults can concentrate on what is most important: the best outcome for their children.

Court proceedings on child custody matters are often considered a chance for ex-spouses to air ‘dirty laundry’ about each other, which can get back to the children and further harm them emotionally. An experienced, neutral mediator ensures that the mediation process is constructive, not destructive, in finding a workable custody solution that keeps both parents present in their children’s lives.

Mediation is meant to help both of You

Court decisions are often said to produce ‘winners’ and ‘losers’. Lawyers fight for their clients in order to get a result that is better for them than their opponent, or the ex-spouse. In contrast, mediation for child custody is designed to achieve a win-win situation. You might not achieve everything you’d like, in terms of custody of the children, but you can reach an agreement with your ex that you can both live with. The neutral mediator is there to help you reach this agreement by making no judgments and offering no opinions. Instead, the mediator facilitates an environment in which both parties feel comfortable discussing the relevant issues, however difficult, and methodically work through them to find areas of agreement and hopefully, a mutually satisfactory resolution.

Workable Relationship in the Future

When a couple has kids, they are bound together in caring for and raising them until they are of legal age, even if they separate. This means that whether they split up or not, they need to communicate with each other regularly about all the issues children will face, from health to education, recreation, religion, access to extended family members, and much more. When couples fight through the courts, their relationship beyond legal action is often destroyed by the whole experience. This deterioration impacts further on the children. One of the aims of family law mediation is to avoid this happening. Instead, by coming to an arrangement you both helped achieve through mediation, you can hopefully move on with your lives and deal with each other in a civil, constructive manner for the future benefit of the children.

It Makes Dollars and Sense

Everyone knows going to court is an expensive process. Lawyers who represent people in court don’t come cheap! Not to mention the time and stress involved. Mediation is in general much more affordable, requiring only the separated couple and a mediator, and can achieve a resolution more quickly. The result is a better outcome for the ex-partners and their children.

If you would like to further discuss any of the issues raised in this article, contact our expert Melbourne, Perth, Brisbane,  Sydney mediation team today. Mediations Australia exists to help people stay out of court and resolve their issues in a faster, cheaper, and more effective way.