The court has long held a view that mediation is an appropriate step towards resolution prior to a parenting matter coming before the court. Solicitors generally have held the same view.
As of 1 September 2021, the court rules have changed to now require all appropriate steps to be taken prior to the court becoming involved in both parenting and financial matters and, in most situations, this is mandated mediation. Of course, family law is not a one size fits all profession, and in some matters, mediation doesn’t work. This is usually only where one party is failing to fulfil disclosure requirements (primarily in property matters) or in parenting matters where there is urgency or risk to a child or parent which means the matter cannot wait for mediation to take place.
Mediations can occur with the parties in different locations or by shuttle where they are not with the mediator at the same time. As such, even in matters where domestic violence has been involved, as long as everyone is able to appropriately negotiate in that way and safety measures are put in place, there is generally no reason why mediation cannot occur. Having said that, it is important you receive advice about this from your family lawyer as every family law situation is unique.
So, back to the question, why should you mediate your matter?
The benefits are multiple and ongoing. Often parties/parents are in a situation where everything the other person does is for a negative reason, there are arguments about matters that in prior times wouldn’t have been an issue, there is often a distinct lack of trust and, of course, hurt and often grief. Despite this, mediation can allow parties to discuss those matters that really need to be resolved to assist with the long term matters affecting the family/property. This can include matters which may be well in the future or matters of particular interest to the particular family situation. The court does not always have the ability or time to undertake this deep consideration of matters relevant to your family.
Further, mediation allows parties to discuss such matters without the inbuilt “need” for parents to seek “evidence” about the wrongdoings of each other. It is a narrative that can be hard to change once it starts, and is really important to steer away from if you can. While there is a likelihood that each of you has your own version of events and matters you are upset about, how can it be in the best interests of either of you or the longer-term interests of your children, to air these in court if you don’t need to? Of course, there are some situations where this is the only course, but that is by far the minority of matters.
The other major benefits include the significantly reduced cost, both in terms of finances and time, of mediation. Whereas a court may take a significant period of time to reach final orders (sometimes more than 1 ½ to 2 years), and often at a very high financial cost, mediation can often be arranged in a very short period (sometimes as soon as weeks) and finalise all matters in a much more collaborative and amicable way. There have been many research papers that outline the positive effect of mediated agreements and how, long term, they are more likely to succeed for families than contested court hearings.
At Best Wilson Buckley, we work hard to ensure your matter is dealt with in the most appropriate manner with the best result available given the situation you are in. It is important that anyone embarking on either course has appropriate legal guidance and information so they can achieve the best conclusion for their family. It is important that you seek advice from a solicitor with the appropriate qualifications, experience and understanding that you need. The vast majority of our solicitors at Best Wilson Buckley are also trained mediators, giving them a valuable perspective when representing clients at mediation.