What Does the Mediation Process Involve?

Divorce mediation can be a useful process to resolve family law disputes – even in complex and high conflict cases. At Leach Legal, we often partake in mediations and have a high success rate.

The actual mediation process is not set in concrete, as the process is tailored to suit the needs of the parties. However, most divorce mediations have the following points in common:

  • The individual who is engaged to chair the mediation (the ‘mediator’), is agreed upon by both parties. This is usually a retired Family Court Judge, or a senior lawyer or barrister with family law experience to help the parties through the process.
  • The mediator meets with each party individually prior to the mediation for a ‘pre-mediation intake session’. At this meeting, the mediator asks each party for some information about their case and explains the mediation process. The purpose of these sessions is to give the parties an opportunity to familiarise themselves with the mediator, and ask any questions they have about the process. Lawyers are generally present.
  • The mediation process is often scheduled for a full day, but exact times depend on how negotiations progress. Some mediations are finished by lunchtime, but others take the full day.
  • The mediation occurs at a location agreed between the parties, and is usually at the offices of one of the lawyers or divorce mediator. It is important that two or three rooms are available throughout the day to ensure that the parties can seek private advice from their lawyers at any time they wish to do so.
  • Parties may decide to exchange certain information prior to the mediation. This allows each party to know the other’s position and what they are proposing by way of settlement. The mediator is also provided with these documents.
  • Mediations generally commence with all parties in the same room. The mediator usually goes over some ‘ground rules’ or guidelines which need to be respected and followed by all involved. Some mediators like each party to provide an ‘opening statement’, which may be what they hope to achieve from the mediation process. Again, this is not compulsory, and very much depends on what will best suit the individuals involved.
  • After the initial overview by the mediator and opening statements, the process of mediation depends on the individual case. In financial matters, the parties may work through the assets and liabilities schedule. The parties or solicitors may also wish to discuss specific issues that need to be resolved.
  • At some stage in the mediation process, the parties separate into different rooms with their respective solicitors. Settlement proposals are discussed, and offers and counter offers may then be made back and forth for the remainder of the mediation.
  • In the event that the parties reach an agreement, the solicitors assist in preparing a Heads of Agreement, or Minute of Consent Orders to document the agreement if time permits. The parties then sign the document.
  • Following the mediation, the parties’ respective solicitors usually work together to formalise the agreement, generally by ensuring the same is made into Family Court Orders.

Although the mediation process can vary, the common goal is always to resolve disputes. This can save individuals significant future costs, and eliminate the need for timely and stressful litigation.

Anna Westphal

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