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31 October 2022

It Depends – Why mediate?

In this edition of ‘It depends’, lawyer Tiana Harris talks about family law mediations and why parties should go to mediation.

In this edition of ‘It depends’, lawyer Tiana Harris talks about family law mediations and why parties should go to mediation.

Video transcript

Welcome to this week’s edition of It Depends. Today, we’re going to be talking about family law mediations and why parties should mediate.

What is mediation?

Family law mediations are a dispute resolution process where the parties to a dispute are assisted by an independent third party to help them reach an agreement. In relation to the practicalities of mediation, usually the parties and the mediator convene in one location, although we’ve seen electronic mediations are more common place these days since the pandemic. It is usually the case that the mediator will float in between the two rooms where the parties are, and in circumstances where the parties’ legal representation are present, they will meet sometimes with the mediator in one room to discuss certain issues. Mediation can be half a day, or most likely a full day.

Who is involved in mediation?

The two parties must be present at mediation. There is also an independent third party who is usually a qualified lawyer or barrister to act as mediator. It’s important to note that the mediator cannot provide legal advice to either party. The parties may elect to have legal representation present with them at the mediation. This is not compulsory, but it is strongly recommended. The parties may also bring along a support person if they wish.

When does mediation take place?

Mediations can take place either before or after court proceedings have been commenced. Although, I will explain a little later why it usually occurs before commencing proceedings.

Do I have to attend mediation in my family law dispute?

It depends. The court’s overarching purpose is to facilitate the just resolution of disputes and the new case management pathway places a significant emphasis on providing opportunities to parties to resolve their dispute or identify the issues in dispute. The court’s pre-action procedures, which were introduced with a suite of new rules and forms on 1 September 2021, provide that, before a party can commence proceedings, they must first invite the other party to mediation, unless, of course, an exemption applies such as an urgent application to the court. If the other party agrees to attend mediation, then both parties must do so and make a genuine effort to resolve the issues in dispute. Whilst mediation is mandatory prior to commencing court proceedings subject of course to some exceptions, I usually tell my clients that mediation is quite helpful, as if no agreement is reached, it will assist the parties to identify or narrow the issues in dispute, which will certainly assist them going forward. Mediation, if successful, can save the parties significant legal fees and the stress of litigation. If you have any questions about mediation, please do not hesitate to contact me or one of the other family lawyers here at Cooper Grace Ward.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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