Welcome to Frequently Asked Family Law Questions. Today we’re going to take a look at how to organise a mediation.
Mediation is a mechanism where the parties to a dispute voluntarily ask an independent third-party to facilitate a discussion aimed at exploring the issues in conflict and attempting to negotiate an agreement that all parties consent to be bound by. Unlike arbitration, the mediator doesn’t decide for you, but rather the parties propose and agree to be bound by the terms of a resolution that suits them.
Because mediation is simply a dispute resolution process, you can mediate many types of disputes, however, we’re going to focus specifically on family law mediations. Even within the whole family law arena, there may be many reasons why you would convene a mediation, which might include:
Generally the easiest way to organise a mediation is via Relationships Australia. In addition to their counselling and family support services, they have a Family Dispute Resolution Service. The advantages of using this service is that the mediation can usually be organised quite quickly and it is often the cheapest option as they are primarily funded by the Commonwealth Government (though a small contribution is usually required).
Relationships Australia mediations are usually scheduled for two (2) hours, which is quite a short time to work through complex issues and negotiate the terms of an agreement. Any agreement reached is not binding on the parties unless it is later filed with the Family Court of Australia (see Parenting Orders).
One of the principal disadvantages of this type of mediation is that lawyers cannot attend to support and advise you. Whilst some might view this as an advantage, if all the necessary legal factors have not been considered then it may be difficult to distil the agreement into something that is binding and further negotiation may be required to canvas the issues that weren’t addressed.
Having a lawyer present to advise you can help ensure that all relevant factors are considered, that the agreement will be in a format that can be transformed into a binding agreement and that you receive advice on the fairness, justice and equity of any proposed agreement before agreeing to enter into it.
If you are eligible for aid, Legal Aid Queensland (or the equivalent body in your state), have effective mediation mechanisms as a starting point in most family law matters. They call these Family Dispute Resolution Conferences (FDRCs).
To determine if you qualify for legal assistance, you will need to meet both the Means Test and the Merit Test. If you are successful in your application for aid, Legal Aid will appoint a lawyer to represent you and refer your matter to their in-house mediation services. To the best of our knowledge, unless the circumstances are exceptional, Legal Aid does not fund property settlement matters, only children’s matters.
FDRCs are scheduled for four (4) hour periods, which generally gives sufficient time to discuss the parenting issues in dispute. A successful mediation would usually result in an agreement to the terms of consent orders that are then lodged with the Family Court after the event.
Breen Smith are private lawyers and do not represent legally aided clients. Accordingly, if you think you might qualify for aid, you should contact Legal Aid Queensland directly for more information.
If the other party in your matter qualifies for legal aid then you may be invited to attend a Family Dispute Resolution Conference through Legal Aid. In this case, you can instruct us and we can attend the FDRC with you.
Private mediations provide the greatest flexibility and, in our opinion, highest likelihood of achieving a lasting resolution.
Whilst you can contact a mediator directly, the mediator can not provide you with legal advice. Most often parties will seek the advice of a family lawyer who will take your initial instructions and provide you with advice on your situation. They will arrange the mediation with the mediator and the other party, help you prepare (including completing disclosure), and attend the meditation with you to represent and advise you.
A private mediation would usually be scheduled for a minimum of four (4) hours, but may be scheduled to take the entire day if both children’s and property issues are in dispute. The goal of a private mediation would be to agree to the terms of consent orders that are capable of being filed with the Family Court. This includes ensuring all legalities are addressed and ensuring that the Court can find that the proposed Consent Orders are in the best interests of the child and/or that any alteration of property interest orders are ‘just and equitable’.
The parties generally share the mediator’s fees, which tend to be based on hourly rate plus a non-refundable booking fee, with each paying half. In addition, each party bears their own legal costs. Whilst a private mediation is the most expensive of the three mediation options listed here, there is a considerable benefit in ensuring that the mediation covers all the necessary factors, with sufficient time allocated to give the best chance of achieving a binding agreement capable of being filed with the Court.
These are the three main options for organising a mediation. In addition, your local community legal centre may be able to provide you with legal advice, however, they generally cannot represent you due to funding constraints. If you are unable to organise a mediation either through Relationship Australia or Legal Aid, or if you would prefer the private mediation option, contact us and we’d be happy to assist.
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