Mediate or go to court? The pros and cons.

by Peter Magee on December 31, 2010

I am all in favour of parties to a dispute reaching an agreement about the outcome rather than letting the courts decide.  Particularly in family law matters where children are involved or people’s financial futures hang in the balance, in most cases it seems illogical to hand responsibility for decisions about these things over to a third party, like a law court.

A court will use their best endeavours to come up with the right decision, but it doesn’t have to live with the consequences. Unlike the two parties involved, a court couldn’t know the intricacies of the facts and circumstances that will affect the decision.

Having a court impose a decision is very different from engaging in a process of mediation. A skilled mediator will act as a good faith broker of an agreement by helping people overcome emotional and practical stumbling blocks. A mediator can help them come to a result in which they have control of the outcome.

With this in mind, I was interested to read an article in the Brisbane Times on 1 December 2010 which was head “Early mediation 1-sided says Judge”. The article raises a very good point in relation to mediation.  Justice Ray Finkelstein expresses reservations about the increase in moves by courts in all jurisdictions to push parties to early mediations.  He said “I have a long standing concern about early mediation, which does not coincide with the views of the Federal or State Parliaments.” He went on to explain that when one side might not have all the facts and relevant information it could result in a party grabbing “a bag of cash” instead of holding out for a fuller and more just result.

Justice Finkelstein makes a very good point and is a criticism which can be rightly aimed at the heart of the Federal Government’s ambition to have mediation at a Family Relationship Centre be the first port of call for all family law disputes.  This places the process of mediation ahead of all the information-gathering tools that are available in the courts to make sure that people are well informed about the things they might wish to consider before reaching any agreement.  In many instance, the parties may have all the information they need at the time of the mediation, but that is not always the case and should not be assumed to be the case.

If you need advice before you take part in mediation for your family law issues, or if you would like us to act as a mediator with your partner in your dispute, please do not hesitate to contact me for specialist advice.  Your preliminary telephone discussions are without charge or obligation.

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