06 Mar Mediation – but do I have to (Mum)?
Mediation has now become a compulsory step in most family law matters. This is to some people’s and, occasionally, their lawyer’s dislike.
Unfortunately, gone are the days where people would litigate through the Family Court for a reasonable cost (time, emotional and financial) and achieve a result worthy of the expense (think cost-benefit analysis).
The parenting mediation, known as Family Dispute Resolution Counselling (or “FDR”) occurs prior to Court proceedings and does not usually involve lawyers.
Property mediation will most often occur during Court proceedings. A property case cannot proceed to trial without having first been to mediation, whether through the Court arranged Conciliation Conference or privately funded mediation.
Mediations serve their purpose and the statistics available do suggest the majority of cases settle without requiring a Court to make the final decision, however, a mediation is only as good as its weakest link.
For mediations, whether for parenting, property or both, all parties must be invested in the process and have a desire to settle.
This desire to settle may not exist for both parties at the same time, which can also present an issue.
The inevitable emotions surrounding relationship breakdown, attempted co-parenting relationships and all of the intricacies in between will impact upon the ability of a family law litigant to be exercise objectivity, commerciality and sensibility.
Research suggests that people at times of stress make decisions with the mental capacity of a 9-year-old (hence the title of this article).
Parties must embrace the mediation setting, be focussed on resolving the dispute and concluding the matter and, in doing so, take a very important step towards any or all of the following:-
- Finalising what might have already been a long and drawn out process;
- Saving a significant amount on future legal costs;
- Avoiding the stress and delay of litigation through an already backlogged family court;
- Repairing the relationship (or at the very least ending the dispute) with their former partner; and
- Commencing to heal and/or move on from the family law process.
Certainly, the ability to settle relies on not just the parties but also their lawyers and the mediator. Whilst mediators are trained and hold the requisite qualifications to undertake mediations, different mediators are suited to different matters, based on several things including their mediation style; and their personal and professional background.
Mediations as stand-alone events can be expensive and stressful, however done properly they are worth so much more than the cost, given for the majority of people they result in a conclusion of the legal matter and the avoidance of an otherwise long, arduous and expensive process afterwards.
Jerome Hey
Director & Acc. Spec. (Fam.)