Why Mediation – and How to Prepare
Saranne Segal | 30 August 2013
Whichever way you look at it
going through a divorce is tough…
Whichever way you look at it, going through a divorce is tough. When children are involved, it is even tougher. Emotions are at their highest, finances are uncertain… and when parents are in conflict with each other the impact on their children can be considerable. It’s an undisputed fact that children do not thrive in an environment where there is conflict.
What is mediation?
In Australia, before a couple with children can take their case to court they are obliged by The Family Law Act to make a genuine attempt at mediation to see if they can resolve their differences in a less adversarial way.
The main issues that mediators can assist with are parenting and financial issues. Custody is now referred to as “shared parental responsibility” and both parents are encouraged to play an active role in the child’s upbringing. This does not necessarily mean equal time for both parents but rather that parents must consult each other about any significant decisions regarding their children’s welfare – such as decisions about their children’s living arrangements, health and education.
When parents can’t agree on these things a mediator, or Family Dispute Resolution Practitioner, can guide and facilitate the discussions between the parents so that a parenting plan can be formulated. This can then be reviewed by their lawyers and turned into a formal Consent Order through the Courts.
Mediators are not there to judge either parent, to take a view or make decisions. Think of the mediator as a chairperson of a meeting. They are there to facilitate, to steer the process and create a safe, controlled environment so that the parents can reach decisions themselves which focus on their children’s best interests.
How – and why – mediation
When people want to be seen quickly and have the financial means to do so, they often choose a private mediator. Others will decide to use a community service such as Relationships Australia, Unifam or Interrelate. These organisations have family relationship centres where parents can go for mediation, however there may be a waiting period that people need to allow for.
Going to Court is generally not a preferable course of action. As many people know, Court is expensive, and on average it can cost around $30,000 to retain a lawyer through the process. It can also take many months for your case to get before the Court, unless it is urgent.
Most significantly, in Court, it is the Judge who decides what should happen to your children, and how any property should be split. The Judges’ decision is then out of the parents hands.
Alternatively mediation allows those that know the children best – the parents – to make these life-altering decisions. Mediation can be a much more empowering process for you and your ex partner.
When shouldn’t you use mediation?
In some instances mediation is not appropriate and the case needs to be heard before the Courts – for example this may occur where there has been any type of abuse – whether it be physical, verbal, financial or the balance of power falls heavily to one parent.
If there is a case where there are allegations of abuse the mediator will do a risk assessment to consider whether the case should proceed to a joint session or whether a certificate should be issued to then allow the case to proceed to Court.
Get legal advice first
The best mediations take place when both parties have received specific legal advice about their individual case. This doesn’t mean speaking to family and friends and using their experience as the basis for your decisions – you are best served by speaking to a specialist family lawyer so you have an idea of a number of probable outcomes should the matter proceed to Court.
By working out your likely legal position, parents are then more informed and able to consider what they are and are not willing to negotiate on.
What can be resolved in mediation?
A variety of topics can be covered, some of the most prevalent are:
- Living arrangements and possible relocation
- Education and religious upbringing
- How school holidays will be spent
- Whether one parent can take the children overseas and for how long
- When and where changeovers will occur
- What afterschool activities children will partake in and who will pay for them
Property Settlements mediation
In private practice, mediators are able to help parents work out their financial settlement.
Studies have shown that women suffer more financially after a divorce compared to men – especially considering that it is often women who have been at home raising the children, while their careers take a backseat.
All these factors need to be taken into account when drawing up the financial settlement, as contributions – both financial and non financial – need to be considered.
Big decisions such as what will be done with the family home can be discussed and agreed upon. Sometimes the home has to be sold so that two new properties can be bought or rented.
Many other items make up the property pool and need to be valued for the purposes of the mediation such as a family business, superannuation, shares, savings accounts, credit card debt, and cars.
Before mediation parents should ask themselves a few questions in regards to parenting and financial settlement:
- What outcome would be my ideal situation?
- What would I be happy to settle with?
- What would I accept in the last instance to avoid going to Court?
The mediation process is not complicated. Normally the mediator will meet both parents individually for a pre-mediation session to determine whether their case is suitable for mediation.
Following the initial meeting, each parent is usually asked to prepare a short opening statement to bring to the first joint mediation session. The statement is usually around two to five minutes in length, and should outline what each parent hopes to achieve from mediation.
Each mediation session runs for approximately three hours and on average it takes at least three joint mediation sessions to resolve some of the significant issues.
Mediation works best when the parents involved come to the process with a number of options, where they are willing to collaborate with the assistance of the mediator and where the guiding principle is making decisions in the best interests of the children.
Saranne Segal is a mediator and registered Family Dispute Resolution Practitioner accredited by the Australian Mediation Association and Director at Hawke Segal Mediation in Sydney’s East.
Saranne worked previously as a lawyer as well as a University lecturer and is the mother of two girls.
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