Most family law matters that I am involved in end up being resolved by agreement. Often agreement is reached after my clients have had some initial advice from me about where they stand, and armed with that information, have been able to talk to their ex-partner and find a solution.
If that doesn’t work, often I am able to negotiate a solution directly with my client’s ex-partners.
If no agreement can be reached directly, mediation is another step that you can take without having to go to court.
There are lots of different forms of mediation. Some are useful, some are useless. Some mediations are with lawyers present, some mediations are not. Some mediations are compulsory, some are voluntary. Just as different lawyers have different skills, different mediators have different skills. The same as lawyers, some mediators are great, some are hopeless.
Deciding whether to go to mediation, what form the mediation is to take, who the mediator is, and whether to take your lawyer with you to mediation, are important questions that I help my clients with every day.
One aspect of mediation that is important, and that many people misunderstand, is in relation to compulsory mediation in parenting matters.
In 2006, the Family Law Act was changed to require separated parents who wanted to go to court over parenting matters to first attempt to resolve their dispute by attending mediation with a type of mediator accredited under the law called a “family dispute resolution practitioner”. Centres were set up (Family Relationship Centres) where some of these mediator’s work. Other family dispute resolution practitioners work independently of Family Relationship Centres.
If after attending mediation, the dispute can still not be resolved, a family dispute resolution practitioner is able to issue a certificate to the parents certifying that they tried to resolve the dispute. That certificate can then be used to allow the parents to start a court case.
What I have experienced is that many people do not understand that it is not compulsory in all parenting cases to obtain such a certificate before going to court. It is really important that you understand that if you have an urgent parenting matter, or if there has been a background of family violence in your relationship, you do not need to go through the mediation pathway before going to court. There are also other exceptions available.
If you think about it, this makes sense. If, for example, your ex-partner was about to take your child out of the country so you could never see them again, the court is not going to expect you to go through some sort of mediation process that might take two or three months before the judge will deal with it. Similarly, it makes sense that if your ex-partner has been violent towards you, there is no point going to mediation where that sort of behaviour would prevent you negotiating on an even platform.
Before you start engaging in mediation, or before you assume you have to attend mediation at all, it is a great idea to get some initial advice about where you stand. In fact, a good mediator will usually ask you to get competent legal advice before going to mediation, because there is nothing worse from a mediator’s perspective than a client turning up to a mediation who does not understand what their legal rights are.
There is no doubt about it, mediation, conducted correctly, and in the right circumstances, can be a great way to resolve family law problems. However, as is the case with trying to resolve things directly with your ex-partner, it is essential that you have proper legal advice before going down this track.
If you need assistance contact me at [email protected] or call one of my offices for a no obligation discussion and for expert legal advice.