It is not only a good idea but the Family Law Act requires a separating couple to make a genuine effort to negotiate a settlement of all issues (children and property) prior to any Court action being commenced. These are known as Pre Action Procedures and apply equally to both children and property matters.
Following these amendments to the Family Law Act, there are now several organisations who offer mediation services, whether it be Family Dispute Resolution in relation to children’s matters, or general Mediation involving property. One thing that must always be remembered is that the organisations and people involved in providing these services are not only prohibited from giving the legal advice, they are often unqualified to do so unless they are experienced Family Law Solicitors or Barristers.
There are however some Family Law Solicitors and Barristers who have become Accredited Mediators and Family Dispute Resolution Practitioners and they alone have a detailed knowledge and understanding of the Family Law Act, the Family Court System, and the range of outcomes that would be likely in each individual circumstance.
Many people attend mediation believing that the Mediator will assist them in providing guidance to ensure that any outcome is fair and within the range.
In fact, a large number of our clients have told us that they believe they have been given advice by the Mediators as to what a Court would or would not take into consideration and what a likely outcome would be. They tell us they have been given advice as to the importance and/or relevance of such things as inheritances, superannuation, valuations and monetary gifts. In relation to children, our clients say they have been told such things as “you having supported your partner’s children doesn’t matter”, “the Courts never allow equal time” or “you do (or don’t) have to send the children on contact” in circumstances where it was completely inappropriate to say so. Almost without exception, what they say they have been told was wrong.
Not only are Mediators not supposed to provide any legal advice, the provision of legal advice by unqualified people who do not hold a Practising Certificate is illegal.
A mediator’s role can be summarised as follows:
- Their primary purpose is to assist the parties to take possession of the dispute for themselves.
- It is the parties who bring the issues to the table that they want to be considered in relation to the dispute. This is totally unlike litigation where the issues are narrow and defined by the legal context. Mediation often assists the parties to get to the underlying causes of the problem.
- The mediator then gets the parties to discuss the issues and look at ways that they can resolve the dispute. Up to this stage the mediator is only a facilitator to open up discussion between the parties and assist them to come up with their own solutions.
- A mediator’s role is then to ascertain whether the solution arrived at by the parties:
(i) Is workable
(ii) Comes within a range of appropriate outcomes
(iii) To ensure that no party is overborne, and that each party is equally empowered.
In the context of legal proceedings and in particular the case of Family Law matters, a mediator cannot properly fulfill these tasks without having an understanding of both Court process, relevant facts and circumstances that the Family Court would ordinarily consider in determining likely outcomes and in particular in property matters a fundamental understanding of such things as stamp duties, any taxation consequences or enforcement in the event of a default that will invariably arise in such matters. In children’s matters, a detailed knowledge of current decisions and an appreciation of all the matters that need to be included in any order, is also required.
In other words, a Mediator or Family Dispute Resolution Practitioner can only provide any effective assistance if the parties have already received their own legal advice. Unfortunately many people attend mediation before obtaining advice as to their rights and entitlements and those of their children, from properly qualified Family Law Solicitors.
Often the distinction between guidance of parties’ towards a solution and the provision of uninformed advice can be difficult to identify and in our experience a very high proportion of our clients who have attended such mediations believe that they have received advice by the Mediator as to their rights and entitlements and rely on what they have been told, believing it to be properly informed.
In such circumstances, many people have been guided to accept outcomes that are grossly unfair and inappropriate and but for the timely intervention of properly informed legal advice provided by qualified Family Law experts, these people would have suffered both significant financial loss and/or cause major harm to their family unit by having inappropriate parenting arrangements for their children put in place.
It is that all important initial advice at the point where there are usually high levels of stress and anxiety that can make a critical difference to both time, outcome and costs involved in separating. At mediation you will often be required to make important decisions that will have a significant effect upon you and your children’s future as well as your financial security on the run, often by persons who are unqualified and unable to give any guidance, but merely wish to be able to say that they have successfully mediated another Family Law matter.
Before you start the mediation process, it is important that you are aware of your rights and entitlements by getting expert advice right from the start and developing strategies that will enable you to create the parenting and financial arrangements that you believe are best for the financial security for yourself and your family.
So be warned, whilst “free” mediation may look attractive at the start, it does not come without a cost that you and your family may be paying for many, many years to come.
As an alternative, a number of Family Law Solicitors have developed relationships with Practicing Family Law Barristers who have become Mediators/Family Dispute Resolution Practitioners. We can now provide a service where you and your Lawyer can participate in mediation with someone who knows what’s what and who can provide realistic guidance to help you and your former spouse or partner come to an agreement that is both sensible and fair. It is not without some initial cost, but unlike the “free” alternatives, you can be confident that the outcome will be fair, that you will be in the best position you can be to rebuild for your future, and you won’t be paying for any mistakes made because you felt pressured to settle there and then.
It has been our experience that nearly all matters conducted in this way have been resolved more quickly and cost effectively than the current alternatives.
Give us a call if you are worried about being forced into agreeing to something you don’t want to as part of mediation process where your Solicitor can’t help you. We have the solution that protects your rights and entitlements and those of your family.