It is common knowledge that proceedings in the Family Court can be expensive and time consuming. There are long delays from the beginning of a case until reaching a trial date, which can potentially take up to two or three years. Also, the final outcome is often uncertain and in the hands of a Judge or Magistrate who does not know you or your former partner.
Mediation is commonly accepted as a much quicker and much more cost-effective option than litigation. It allows you to have control over the process and the final outcome. They can be conducted on an open basis (information exchanged is open and disclosable in the court system) or on a without prejudice basis (information exchanged is confidential and non-disclosable in court unless there is an imminent risk to a child or to children).
The process begins by one of the parties having a confidential intake session with the mediator. The other party then has a separate confidential intake session with the mediator. After both intake sessions, the mediator will become aware of the issues in dispute, the positions of the different parties, and the goals of the parties. The mediator then meets with both parties at the same time to facilitate the mediation, which is intended as an informal discussion with a casual atmosphere.
The role of the mediator is not to represent one or both of the parties or advocate on their behalf. Their role is to help identify the issues, make an agenda, facilitate discussions, workshop ideas and potential solutions, and help to see if an agreement can be reached.
There are three main types of mediation available to choose from.
The first type is a mediation with a mediator but without lawyers. You and your former partner meet with a mutually selected mediator to discuss your dispute, workshop solutions, and negotiate an agreement.
The second type is a mediation with a mediator while lawyers are also present to assist the parties.
The third type of mediation is an informal conference. This is a mediation without a mediator. It involves both parties engaging in discussions with the help of their lawyers. This is common when the dispute is narrow or when costs are being kept to a minimum, but the prospects of success are much higher if an impartial mediator is involved.
If there is a history of family violence or any concerns about personal safety, mediations can be conducted on a shuttle basis. This means that both parties are kept separately from each other in different rooms while the mediator moves between them and carries messages from one party to the other party.
If you and your former partner are both legally represented, you will be expected to attempt mediation together before commencing proceedings at the Family Court of WA.
Our firm regularly engages with many high quality and experienced mediators. Please feel welcome to contact us for a recommendation to suit your personal circumstances and budget.
If you have any questions about negotiating and the mediation process, or you would like to discuss your individual personal circumstances and options, please feel welcome to contact one of our family lawyers by emailing us at [email protected] or calling 08 6141 3227.