How does divorce mediation work?

If you are considering mediation after separation, you probably have questions about what actually happens. Will you have to sit across the table from your former partner? Will lawyers be there? Does the mediator tell you what is fair? What happens if you cannot agree?

Mediation is usually more structured, and often less confrontational, than people expect.

What is commonly called divorce mediation is generally not about the divorce itself. In Australia, divorce is a separate legal process. Mediation is more often used to work through the decisions that come with separation, including parenting arrangements, property and finances.

The mediator helps you identify what needs to be resolved, consider different options and, where possible, reach an agreement. They do not decide the outcome for you.

What happens before divorce mediation?

Before the mediation, the mediator will usually speak with each person about the process and whether mediation is suitable.

For a property mediation, there should also be enough financial information available for both people to negotiate on an informed basis. This might include information about property, mortgages, bank accounts, superannuation, investments, businesses, trusts and other assets and liabilities.

There may be some work to do before mediation can usefully take place. A property or business might need to be valued, financial disclosure may need to be completed or advice may be required about a particular financial issue.

It is also worth obtaining independent legal advice before the mediation. This can help you understand your legal position, the range of possible outcomes and any issues you should consider before negotiating.

You do not need to arrive ready for a fight. You do need to know what you are dealing with.

Do I have to sit in the same room as my former partner?

No.

Some mediations take place with everyone together. In others, each person remains in a separate room and the mediator moves between them. This is commonly called shuttle mediation.

Mediation can also take place online. Lawyers may attend with each person, particularly for financial mediations or where the issues are more complex.

The format can be adapted to suit the circumstances.

If there are concerns about family violence, coercive control, significant conflict or an imbalance in negotiating power, the mediator should consider whether mediation is appropriate and whether safeguards are required.

What actually happens on the day?

The mediator will usually start by explaining how the mediation will work and identifying the issues that need to be discussed.

Each person has an opportunity to explain their position and what they would like to achieve. The mediator then helps work through the areas where you agree and those where you remain apart.

There is often quite a lot of back and forth.

One proposal may lead to another. Figures may need to be recalculated. You may want to speak privately with your lawyer. An option that initially sounds workable may need to change once you consider what it would mean in practice.

This is all a normal part of mediation.

It is also possible to have a useful mediation without resolving everything. If you start the day disagreeing about ten things and finish disagreeing about two, you have still made considerable progress.

Does the mediator decide what is fair?

No.

The mediator is independent and does not act for either person. They do not decide who is right, make orders or require you to accept a particular settlement.

Their role is to manage the discussion, help identify possible solutions and assist with negotiations when they become stuck.

It is natural to want to know what the mediator thinks the outcome should be. Ultimately, however, the decision remains with you.

You can accept a proposal, reject it or suggest something different.

What is Family Dispute Resolution?

Family Dispute Resolution, usually called FDR, is a particular form of dispute resolution conducted by an accredited Family Dispute Resolution practitioner. It is commonly used for parenting disputes.

Before commencing most parenting proceedings in the Federal Circuit and Family Court of Australia, parents are generally required to make a genuine effort to resolve their dispute through FDR and obtain what is commonly called a section 60I certificate, unless an exemption applies.

Private mediation is also commonly used to resolve property and financial matters.

Your lawyer can advise you about which process is appropriate for your circumstances.

Do I need a lawyer at mediation?

Not necessarily, although the mediator cannot provide either of you with independent legal advice.

For some couples, it may be appropriate to obtain advice beforehand and attend the mediation without lawyers.

For others, having a lawyer present can be valuable, particularly where there are substantial assets, businesses, trusts, complex financial arrangements or a significant difference in negotiating power.

Your lawyer can advise you as proposals develop, help you understand the consequences of different options and suggest alternative ways of structuring a settlement.

They can also give you an opportunity to discuss an offer privately before deciding whether to accept it.

The amount of legal involvement should reflect your circumstances.

What if we cannot agree?

Going to mediation does not mean you have to settle.

Sometimes more information is needed. Sometimes people need time to consider an option. Sometimes most of the issues can be resolved while one or two remain outstanding.

If you cannot reach agreement, the next step may be further negotiation, another mediation or court proceedings, depending on the circumstances.

A mediation does not necessarily fail simply because everything was not resolved. Narrowing the issues can save considerable time and expense later.

What happens if we reach an agreement?

The terms agreed at mediation will usually be recorded in some form before the mediation concludes, but there may still be work required to make the agreement legally effective.

For property and financial matters, the agreement may need to be formalised through consent orders or, in appropriate circumstances, a financial agreement.

For parenting matters, parents may record their arrangements in a parenting plan or apply for consent orders. There are important differences between these options. In particular, a parenting plan is not itself legally enforceable, while consent orders are.

Before the mediation finishes, make sure you understand what has been agreed, whether anything remains unresolved or conditional, and what needs to happen next.

Is divorce mediation worth trying?

For many separating couples, mediation provides an opportunity to resolve matters without asking a court to make the decisions for them.

That does not mean agreeing for the sake of agreeing.

A useful mediation allows you to understand your options, consider realistic proposals and make informed decisions about whether an acceptable agreement can be reached.

Sometimes that results in a complete settlement. Sometimes only part of the dispute is resolved. There will also be circumstances where the right decision is not to agree.

Where an appropriate agreement can be reached, mediation can give you greater control over the outcome and avoid some of the cost, delay and uncertainty of court proceedings.

Florens Family Law helps clients prepare for and participate in parenting and property mediations, from advice beforehand and identifying any valuations still required, through to attending mediation with you and formalising an agreement afterwards. To discuss your circumstances and how best to approach mediation, book a free discovery call.

Sophie Pettigrew

Legal Practice Director, Florens Family Law

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This article is general information, not legal advice for your situation.