Navigating family law disputes can be a complex and emotionally charged process, often requiring an effective means of resolution that avoids the formalities of a courtroom battle. One such avenue is mediation, a voluntary and confidential alternative dispute resolution process commonly employed in family law matters to help achieve a settlement out of court. In this post, New South Lawyers’ Family Lawyers explain the process
What is mediation and how can it help achieve a settlement out of court
Mediation is an alternative dispute resolution process used voluntarily by parties or in compliance with court orders. It is a formal process of resolving Family Law disputes without involving a judge. Mediation is a voluntary and confidential process presided over by a mediator which takes place in a safe and non-intimidating environment.
In Family Law courts, the rules provide that parties must attend some form of alternative dispute resolution including mediation. The Court cannot force parties to reach an agreement that is not acceptable to all parties.
The objective of every mediation is to reach a settlement out of court, or a settlement without proceeding to a final hearing that is acceptable to all parties. The parties involved must be willing to attempt to resolve the matter at mediation. The parties must make genuine attempts to hash out the issues and find reasonable and practical solutions to resolve the matter.
The role of a mediator
A mediator is an impartial third party that assists and guides the parties to voluntarily reach a settlement. The mediator’s role is not to decide on the outcome of the dispute but to guide and steer discussions that will enable the parties reach a settlement by consent of all parties. A good mediator will remain objective and neutral and will assist the parties to narrow down the issues in dispute and resolve their issues. Mediators can assist the parties to draw up a proposal for their consideration.
Role of lawyers at mediation
While some solicitors take on an adversarial role during mediation, the role of a solicitor during a mediation is not to raise arguments and make submissions like in the courtroom. Prior to mediation, a good and experienced lawyer may discuss the merits of their client’s case with their client and the likelihood of success should the matter proceed to Court, as well as assist their client to identify and clarify the relevant issues from their client’s perspective. Lawyers assist their client prepare for mediation, put together a set of proposals, manage their client’s expectations, ensure their client is well informed and has a sound understanding of the mediation process. The lawyer's role is also to advise their client on any proposals put forward in anticipation of mediation.
During mediation, a good lawyer will consider and advise their client on the reasonableness of any proposal their client intends to put forward, advise their client on any offers made by another party, assist their client to be objective and provide steadfast support to their client. An experienced lawyer will ensure that before their client agrees to an agreement or before the agreement becomes legally binding on their client, their client has had an opportunity to consider the proposal and has been provided sound advice on the proposed terms of the agreement reached. A good lawyer does not make decisions for their client at mediation but provides them with support, guidance and advice.
Is settlement at mediation binding?
Upon reaching an agreement, the mediator or, if the parties are legally assisted, the parties’ lawyers will assist the parties in recording the terms of settlement during the mediation, either by drawing up a Heads of Agreement or Consent Orders at the mediation conference. A Heads of Agreement is a summary memorandum of the parties’ in-principle agreement which is then used to prepare a detailed term of settlement.
Meanwhile, Consent Orders cover the details of the terms of settlement in the form of readily acceptable proposed orders signed by all parties. The signed Consent Orders is then filed by consent of the parties to the Court for approval by the Court. Once approved, the Consent Orders then become binding on all parties. If the dispute involves financial issues and or child support issues, the parties can also enter into a binding agreement that reflects the parties' agreement at mediation.
Upon reaching an agreement, the mediator or, if the parties are legally assisted, the parties’ lawyers will assist the parties in recording the terms of settlement during the mediation, either by drawing up a Heads of Agreement or Consent Orders at the mediation conference. A Heads of Agreement is a summary memorandum of the parties’ in-principle agreement which is then used to prepare a detailed term of settlement.
Do you go to court after mediation?
In the case where the parties attend mediation either voluntarily or by direction of the Court, while court proceedings are before the Court, the parties or their lawyers will generally prepare and file Consent Orders based on the terms of settlement consented to by the parties. The Court can either make the proposed orders agreed to by the parties in their absence or invite them to make further submissions with respect to the orders, prior to approving the orders by consent of the parties. If the proposed orders sought by consent are final orders then the matter will be finalised and dismissed without further attendance of the parties.
If parties reach an out of court settlement prior to commencing proceedings they are not required to attend Court and can simply file their Application for Consent Orders together with the proposed Minute of Consent Orders to be approved by the Court. The application is considered by a judge in the absence of the parties and once approved the matter is considered finalised and the orders become binding in the same way as orders made after a final hearing.
What if some issues could not be settled at mediation?
Where parties are unable to settle all issues at mediation, the settled issues can be finalised by agreement of the parties. This means that if the matter progresses through court, the Court is not required to make a determination on those issues that have been settled by agreement of the parties. This assists the parties by narrowing down the issues for determination to only issues that the parties are unable to agree on or reach a practical and acceptable settlement. The parties can either proceed to a final hearing or attempt further mediation to settle the matter.
New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.
To find out more, chat with a member of New South Lawyers' Family Law Team today.
