Mediation is a type of alternate dispute resolution (ADR) utilised instead of or alongside going to court. There are numerous benefits to engaging in ADR instead of going to court. These include:
Save money
Going to court can be extremely costly as you need to pay court fees, lawyers’ fees and take time out of your day to attend your court hearing.
Save time
The court process can be extremely lengthy. The average family law case can take approximately 2 years to resolve at the trial stage. Before this, numerous court dates, meeting with lawyers and giving instructions would prove to be an immense drain of your time.
Preserve relationships- the court process can be very stressful and you are unlikely to come the other end feeling fondness for the other party. This can be okay if it is the end of your relationship, however if you have children involved this could pose challenges if you need to co-parent.
Help you move on with life
Getting your matter sorted in a quick, cost effective, amicable way will help you move on as soon as possible and get back to what matters.
When should I get legal advice
There is no right or wrong time to get legal advice.
It is however highly recommended that you get legal advice before and after mediation. Getting legal advice will help you understand your rights and entitlements before going into mediation. This will help equip you with the knowledge to understand your realm of negotiation.
Getting legal advice after your mediation will also provide many benefits. If you come to an agreement with your partner at the mediation, this agreement will not be legally binding at this stage. Your family mediation lawyer will be able to give you your different option as to how to turn your agreement into legally binding orders.
Do I have to go to mediation?
This depends on the nature of your issue.
If you are mediating regarding a property dispute, then it is not a strict requirement to attempt mediation. However, you will need to make a genuine attempt to resolve your issue outside of court first. This could be through mediation, negotiation, counselling or any other type of alternate dispute resolutions other than going to court.
If you are mediating regarding a children’s matter, it is a strict requirement to go through a specific type of mediation before applying to court. This type of mediation is called ‘family dispute resolution’ or ‘FDR’. Unless there are exceptional circumstances to your matter such as urgency, family violence or child abuse, you are required to have a certificate from FDR before you can apply for the family court of WA to hear your matter.
What cases are suitable for mediation?
Except for cases which are urgent or have the presence of child abuse or family violence, most family law cases are suitable to mediate about, and attempting mediation is highly recommended.
What happens at mediation?
Mediation is a process in which you and the other party meet with a trained third-party mediator. The mediator involved could have a background in psychology or law.
The purpose of the mediator is for them to listen to both sides of the story, and to help both you and your partner come to an agreement by yourselves.
Unlike some other types of ADR, mediators will not make the decision for you, they will simply assist you in coming to a decision by yourselves.
What happens if we reach an agreement?
Property- if you and your partner come to an agreement at mediation about how to split the property you own together, this is a great first start. It might be the case that you write down exactly how you will split your property and both sign this.
However, whatever agreement you come to at this stage Is not legally binding. What this means is that there is nothing stopping your partner or yourself from going back on this agreement and reneging.
It is highly recommended that you see your family lawyer after you and your partner come to an agreement for information on how to turn this informal agreement into one that is legally binding. Having a legally binding order means that unless there are exceptional circumstances, these orders cannot be altered in the future. This will help you both move on with life in a way that is predictable and certain.
What happens if we cannot reach an agreement?
- If you cannot come to an agreement at mediation, the next option is to apply to the Family court to hear your matter.
- The process is different for children and property matters, and the court will hear the issues separately.
- Although it is possible to represent yourself, getting advice from a family lawyer before you do this is highly recommended.
- The court process can be lengthy, expensive and tedious.
Should my lawyer come with me to the mediation meeting?
There is no right or wrong answer to this, but having a lawyer there to help you in the process is definitely a possibility. It is recommended to come up with a strategy with your lawyer in regard to what the realms of your negotiation will be, and then keep that in mind whilst negotiations occur.
Do however keep in mind that the purpose of mediation is to reach an agreement with the other party in a process that will hopefully avoid court. This means that being overly litigious in the process may not work to your advantage as coming to an agreement by consent is what the process is about.
How much does it cost to get a lawyer?
The answer to this question depends on what you are using the lawyer for. If you are just after some initial advice from your lawyer, we charge the rate of $330 for an initial consultation.
If you want your agreement to be made into a legally binding order, we charge a fixed fee rate of $2,200 for consent orders or $3,300 for a binding financial agreement (Read up about what the differences between these two are on our website).
