Consider Whether Mediation is Appropriate for Your Case

by Peter Magee on October 21, 2016

Peter Magee

This article is part three of a four part series which presents strategies for resolving your family law dispute in a timely way, in circumstances where many Registries of the Family Law Courts are experiencing crippling delays of over a year between filing initiating Court documents and obtaining a final hearing. This article considers why mediation may be a good way to side-step these delays for the right case.

There are many benefits to engaging in mediation to attempt to resolve a family law dispute:

  • It is timely – As long as all parties agree to the mediation date and the chosen mediator has availability, the mediation will proceed on that date. Realistically, this may shave months off your matter resolving either via the Court processes or from negotiations out of Court between parties or their legal representativies.
  • You can choose your mediator – When you enter the Family Law Courts system, there is no choosing who will be hearing your case. This is determined by the Registry and is often simply dependent on the date that the Initiating Application for Court proceedings is filed and the availability of Judges at that time. With mediation on the other hand, you and your former partner can select a mediator that is well regarded in family law circles and sensitive to your budget. Every family lawyer will have a list of mediators that they would comfortably recommend to their clients of varying experience levels and price ranges. Any deadlocks on the choice of mediator are routinely overcome by one party nominating three mediators and the other party choosing one.
  • The parties have greater control of the process – We all have different values and emotional triggers. Whilst some clients feel that it is really important that they be given an opportunity to tell their story or verbalise to their former partner what they have been though before they can move on emotionally, other clients cannot even bring themselves to be in the same room as their ex. Mediation provides a possible way forwards here as it can be tailor made to deal with the parties’ values and priorities, which can have a very powerful impact on parties’ receptiveness to negotiating. In contrast, the Court processes are understandably more rigid and are not designed with your unique circumstances in mind. There are other benefits to parties controlling their mediation process. For example, drafting Court documents may not be necessary which can help reduce parties’ legal fees and help keep the process less adversarial.
  • A failed mediation is not necessarily a waste of time – Do not underestimate the value of a mediation where you have not been able to reach an overall agreement. In many such mediations, the parties have moved so close to an agreement that a few letters backwards and forth between solicitors in the coming weeks can get the deal over the line. If the mediation was, superficially, a waste of time because no-one was prepared to engage in genuine negotiations, this can also have a silver lining as it should send a clear message to the parties – initiate Court proceedings without further delay.

Leave a Comment

Previous post:

Next post: