In this guide
Key takeaway: For most separating couples, the ideal first step is a brief legal consultation to understand your rights, followed by mediation to reach an agreement. The two services complement each other — lawyers advise you on the law, mediators help you reach a practical resolution. The mistake is choosing one and ignoring the other entirely.
The two starting points
When you are contemplating separation, one of the first practical questions is: who do I see? A family lawyer? A mediator? Both? The answer depends on your specific circumstances — but understanding what each professional actually does helps you make a better choice.
A family lawyer gives you legal advice. They tell you what the law says about your situation — what you are entitled to, what obligations you have, what risks you face, what the process looks like, and what outcomes a court would likely produce if your matter went to a hearing. They are your adviser and, if needed, your representative.
A mediator helps you reach agreement. They do not give legal advice. They create a structured, confidential environment where you and your partner or ex-partner can negotiate an outcome — on property, parenting, support, or all three. They are neutral and work with both of you together.
These are different services with different purposes. In most separations, you will need both — at different stages and for different purposes.
Not sure where to start? Talk to us. We'll tell you honestly whether mediation is the right first step for your situation.
Free no-obligation consultation →When to see a lawyer first
There are situations where seeing a family lawyer first — before attempting mediation — is the right call:
- There is a history of family violence or coercive control. The power imbalance created by abuse can affect mediation dynamics. Getting legal advice first ensures you understand what protections are available and whether mediation is appropriate at all in your circumstances.
- There are urgent issues. If you need to protect assets from being dissipated, obtain a family violence order, ensure the children remain in the jurisdiction, or deal with urgent housing issues, a lawyer can make urgent court applications that a mediator cannot.
- You have complex finances. If your situation involves a significant business, trusts, SMSFs, or offshore assets, understanding your legal position before entering any negotiations is important.
- You have no idea what you are entitled to. If you genuinely do not understand the family law property settlement framework — particularly the four-step process under section 79 of the Family Law Act — a brief legal consultation before mediation gives you the knowledge to participate meaningfully.
- The other party already has a lawyer. If your ex has engaged a lawyer who is writing letters making legal demands, get your own legal advice before responding or engaging in any negotiation process.
When to see a mediator first
For many separating couples — particularly where the separation is relatively amicable, there are no urgent safety issues, and both parties understand roughly what is on the table — starting with mediation makes sense:
- Where you and your partner want to avoid the adversarial lawyer-versus-lawyer dynamic and prefer to work through your issues jointly
- Where you have children and want to establish parenting arrangements as quickly as possible — a mediator who is an accredited FDRP can issue the Section 60I certificate needed for any future court proceedings if needed
- Where the relationship ended reasonably amicably and you want to complete the separation process without escalating conflict
- Where both of you want to control the outcome rather than hand decisions to a court
Even where you start with mediation, getting legal advice at some point before formalising any agreement is important. The mediation session is where you reach the agreement; the lawyer is who ensures it is properly documented and protects your interests going forward.
What a family lawyer can do for you during separation
- Explain what the Family Law Act says about your property settlement — the four-step process, the 75(2) factors, the difference between contributions and future needs
- Give you an honest assessment of what a court would likely award in your circumstances
- Advise on time limits (12 months after divorce / 2 years after separation for de facto)
- Make urgent applications for asset preservation, family violence protection, or child location orders
- Draft and file Consent Orders or Binding Financial Agreements after mediation
- Represent you in court if mediation does not produce agreement
What a mediator can do for you during separation
- Create a safe, structured, confidential environment for you and your partner to discuss and negotiate outcomes
- Help you communicate more effectively — particularly where communication has already broken down
- Ensure both parties have shared financial information before any agreement is discussed
- Keep discussions focused on practical solutions rather than past grievances
- Draft a written summary of any agreement reached
- Issue a Section 60I certificate for parenting matters (where the mediator is an accredited FDRP)
Cost comparison
| Service | Typical cost | What you get |
|---|---|---|
| Initial legal consultation (1 hour) | $350–$600 | Understanding of your legal rights and entitlements |
| Ongoing legal representation (moderate matter) | $15,000–$60,000+ | Advice, negotiation, and representation through to resolution |
| Mediation (Mediations Australia, fixed fee) | $2,500–$5,000 total (shared) | Facilitated negotiation, written agreement summary |
| Consent Orders preparation | $1,500–$3,500 | Legally binding court orders based on mediated agreement |
| Contested court matter (per party) | $50,000–$175,000+ | Full adversarial proceedings to a final hearing |
The most cost-effective pathway for most separating couples: one legal consultation to understand their rights, mediation to reach agreement, and a lawyer to formalise the agreement as Consent Orders. Total cost: typically $4,000–$10,000 — compared to $50,000+ per party for contested proceedings.
The smart pathway combines legal advice and mediation. Talk to us about how to structure your separation process for the best outcome.
Get clarity on your options — free consult →The practical pathway for most couples
For most separating couples where there are no urgent safety issues, this sequence tends to work best:
- Step 1: Brief legal consultation (1–2 hours) — understand your rights and the likely range of outcomes for property and parenting
- Step 2: Gather financial documents — both parties exchange information as a precursor to any productive negotiation
- Step 3: Mediation — one to three sessions to reach agreement on property and parenting arrangements
- Step 4: Legal review of the mediation outcome — before signing anything, have a lawyer review the written summary
- Step 5: Formalise the agreement — Consent Orders for property; Parenting Plan or Consent Orders for parenting arrangements
This pathway typically costs a fraction of contested court proceedings and resolves the separation in weeks rather than years.
Urgent issues that need immediate action
Some situations require immediate legal action, regardless of whether you prefer mediation. These include: a risk that the other party will remove children from Australia (apply for a Child Alert or passport order); a risk that assets will be dissipated or hidden (apply for freezing orders); current family violence or threats (apply for an Apprehended Domestic Violence Order through police or a family violence order through the court); and enforcement of child support if it is not being paid. In any of these situations, see a family lawyer immediately — mediation can follow once urgent matters are stabilised.
Frequently asked questions
Can I see a mediator without having spoken to a lawyer at all?
Yes. There is no requirement to see a lawyer before attending mediation. However, we strongly recommend at least a brief legal consultation — not because you need a lawyer in the room, but so you understand what you are agreeing to and whether it is fair by reference to your legal entitlements.
Will seeing a lawyer make my separation more adversarial?
It depends on how you use the legal advice. Using a lawyer to understand your rights (so you can negotiate fairly in mediation) is very different from engaging a lawyer to "fight" on your behalf. Many family lawyers now encourage mediation first and will advise you on how to use mediation effectively rather than pushing you toward litigation.
What if my partner refuses to see anyone — lawyer or mediator?
You cannot force your partner to engage with any dispute resolution process. However, you can proceed without them in certain ways: for parenting matters, a refusal to attend FDR generates a certificate allowing you to file in court; for property matters, you can file in court without their participation. Document all attempts to engage in good faith — this matters if costs are argued later.
Is there a waiting list for mediation?
Government-funded services (Family Relationship Centres, Relationships Australia) often have waiting lists of weeks to months. Private practitioners like Mediations Australia are typically available much faster — often within days to two weeks. If timeliness matters, a private mediator is usually the better choice.
Related guides
- family mediation
- family mediation process guide
- cost of divorce in Australia
- property settlement in family law
- parenting mediation
For government-funded Family Relationship Centres, see the Attorney-General's Department. For your legal rights upon separation, the Family Law Act 1975 is the primary legislation.