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Divorcing? Three reasons why you should consider mediation
Previously the only way that a divorce and the associated disputes (such as parenting and property) could be resolved was through the litigation process, without there being any alternative methods available. Litigation is an adversarial system pitting one party against another, with a “winner” and a “loser” within a highly emotive scenario such as divorce, which can have extremely negative consequences for an already tense parenting relationship. Where an ex-wife and ex-husband are unable to resolve their parenting and property disputes on their own, mediation has come to the forefront in the past two decades as a viable alternative to the adversarial system.
What is the process of getting a divorce?
The grounds for divorce in Australia is that a marriage has irretrievably broken down with “no fault” of either party. The husband and wife must have been separated for at least 12 months, and if the couple have been married for less than two years, then relationship counselling is compulsory.
To apply for divorce, an application is filed either jointly by the couple or solely by one party (if solely, then it must be served on the other party). A hearing date is allocated and the parties are only required to attend if the children of the marriage are under the age of 18 years. The Family Court must be satisfied that the children will be appropriately cared for and provided for.
Once the Family Court is satisfied that the grounds for divorce have been established, Family Court will make an order for “decree nisi for dissolution of marriage”, which can be rescinded if the parties choose not to finalise the divorce. This becomes “absolute” (or final) after a period of one month, after which the parties are free to re-marry.
What is Divorce Mediation?
Divorce mediation includes an intake session (namely a pre-mediation assessment and provision of information), pin-pointing the areas on which the parties agree and disagree. A mediator will encourage the parties to seek further information on areas with which the parties are not familiar (such as economic resources, legal rights and responsibilities, or children’s and household’s requirements). Everything discussed at mediation is confidential (subject to limitations such as allegations of abuse or any threats made) and cannot be brought up again in the Family Court at a later date, should the mediation be unsuccessful and the parties proceed to litigation.
Here are three significant reasons why you should consider mediation before litigation:
Where it is appropriate, Child-Inclusive Mediation (sometimes called Child-Informed Mediation) can often be a useful tool to encourage the parties to focus on the most important factor to take into consideration when agreeing to parenting arrangements – namely their child’s best interests. Where it is age-appropriate, it can also be reassuring to the child to view the Parenting Plan that their parents have agreed upon, so that the child knows exactly where they will be living, with whom they will be living, and that they still are able to have significant time and contact with their other parent.
The best outcome for mediation in relation to divorce is a written agreement between the parties, which is drafted by the mediator and signed by both parties. This is not a legally binding document. However, we write all mediation agreements in the legal format called draft consent orders, which can be filed with the Family Court, which will review it and convert it into Consent Orders where appropriate.
As opposed to a judgment made by the Family Court in relation to Parenting Orders, the parties have collaborated to reach agreement at a mediation and compromised rather than “winning” or “losing”. This often results in a better and more civil parenting relationship in the future, since the parties are more likely to be satisfied with the arrangements, to comply with the arrangements they have made (as opposed to arrangements that have been ordered by the Family Court), to resolve future problems without litigation, to be more flexible with arrangements, and essentially to be on better terms with the other parent.
The cost of contested and protracted litigation in the Family Court is significant. Where there are significant property assets, very rarely will Legal Aid be granted to the parties and the legal costs will escalate extremely quickly. Where a lawyer has not received training in collaborative law and is still focusing on the adversarial model, such a lawyer will often encourage their client not to settle for less than what they are entitled to. Moreover, if the parties are unable to directly communicate with one another, minor disputes are often blown out of proportion and focused on unnecessarily rather than the focus being on the overall settlement and negotiation.
Whilst parties are highly recommended to seek independent legal advice as a part of the mediation process, the cost of obtaining this advice will be very modest in comparison to the cost of litigation. Likewise, if agreement is reached at mediation, we will write the agreement in the legal format of draft consent orders, which the parties can file with the Family Court, which can ratify into Consent Orders, where appropriate.
Even if one aspect of the dispute can be resolved through the mediation process and the parties reach an agreement in relation to their parenting arrangements, this is still a successful outcome. This outcome will still be extremely cost-effective to the parties (both monetarily and emotionally), as only the financial matters will proceed to litigation, and the parties can co-parent effectively rather than taking the parenting matters to the Family Court as well.
While divorce is never a pleasant occasion for the parties, by proceeding with a mediation process rather than with litigation the parties will be in an excellent position to collaborate and negotiate under the guidance of a trained professional. This in turn will often result in a mutual agreement and avoid a lengthy, drawn-out “battle” that has so frequently been associated with divorce.
More Information on Mediation & Family Dispute Resolution
- Family Dispute Resolution
- Parenting Plans
- Financial Agreements
- Child-Inclusive Mediation
- Section 60I Certificates
- Child Support
- Child Support Calculator
- De Facto Relationships & Separation
- Divorce & Mediation
- Grandparents & Mediation for Grandchildren
- Parenting Plan & Draft Consent Orders for Children
- Property Settlement at Mediation
- Mediation & Domestic Violence
- Relocation & Overseas Travel with a Child
- Going to the Family Court versus Mediation
- Family Dispute Resolution & Mediation
- Child Support & Mediation
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Family Dispute Resolution
Family Dispute Resolution or Family Mediation is the process through which parents in conflict can meet, discuss and reach agreement on parenting issues and financial matters, all with the assistance of an objective and neutral third party in a calm and professional environment.
Financial Agreements deal with any property, investments, shares and other assets and liabilities. Mediation is the quickest and most cost-effective process for reaching settlement. Our mediators provide written financial agreements to both parties at the end of the mediation.
A trained child consultant spends time with each child and uses therapeutic tools and strategies to determine how they are coping and what may need to change. The child consultant then provides feedback to the parents during the mediation.
Section 60I Certificates
Section 60I certificates are required before an application for Parenting Orders can be made to the Family Court. Our mediators are approved by the Department of the Federal Attorney-General to provide section 60I certificates.
Child Support Agreements deal with how parents financially support their children, including day-to-day costs of living, school fees, uniforms and books, tuition costs, general medical and health care costs, and specific healthcare costs (such as speech therapy).
DISCLAIMER: The information contained on this website is for general guidance only. No person should act or refrain from acting on the basis of this information. Professional legal advice should be sought based upon your particular circumstances, because laws and regulations undergo frequent changes.