Mediation is an important aspect of family law dispute resolution in Western Australia in 2022.
Read more about what mediation is, what mediation isn’t, the mediation process, what to expect in a session and plenty more.
Quick article links:
- What is mediation
- What is mediation not
- What is the process?
- What to expect in a joint session
- Is mediation only for parenting matters?
- When can a certificate be issued?
- What happens if we reach an agreement
- Why should I do mediation and not go straight to court?
- Is mediation confidential
- Can my lawyer attend mediation?
What is mediation
Mediation a cost-effective way to reach an agreement without the intervention of Courts or lawyers.
Mediation is a way to resolve conflict. It is a safe space to be able to discuss issues and work on a plan for the future. A mediation requires both parties to work together to reach an agreement.
What is mediation not?
Mediation is not a space to have a decision made for you.
The mediator is can not make decisions for you. It is not a space to bully or pressure parties into decision-making.
What is the process?
Mediation begins with an intake session with each party. This is a private meeting with the mediator to prepare you for a joint session.
During the intake session you are guided through the process so you know what to expect.
Your mediator will discuss with you any safety concerns, issues relating to communication of parties and settle any nerves you may have. It is a time to discuss what you are wanting at the end of the mediation process and to reality check your wants and desires. As the process is confidential the mediator can not repeat what is said to other party.
Once both parties have completed their individual intake session the mediator will decide whether it is appropriate to book a joint session. If so, a joint session will be booked.
What to expect in a joint session
The joint session begins with the mediator explaining to the party the process and what to expect for the day. Each party then has an opportunity to provide an opening statement. The opening statement is a chance to explain why you are attending and what you want out of the session.
The parties and mediator then set an agenda for the session.
Once the agenda is sorted, the parties can then begin discussing issues.
The mediator will keep the conversation focused on the future and on the topic (ie parenting, financials). If any agreement is reached the mediator will record them down for the parties.
Is mediation only for parenting matters?
No. Mediation can be in relation to financial issues, child support or parenting. Outside of family law mediation is issued for a lot of things such as employment law, contract disputes or building issues.
Mediation is a powerful way to resolve conflict without the invention of the Court or a tribunal.
When can a certificate be issued
A section 60i certificate can be issued by a mediator in a variety of scenarios. If the parties have attended mediation and genuinely attempted to mediate a certificate can be issued.
If one of the parties doesn’t engage in mediation a certificate can be issued.
A mediator may determine the matter is not suitable for mediation. For example, there is a concern relating to family violence then the mediator, using their discretion, can issue a certificate.
What happens if we reach an agreement?
The mediator will draft you a parenting plan outlining what the parties have agreed. If it is a financial matter then a heads of agreement can be drafted.
It is important you obtain independent legal advice to determine whether the document drafted is right for your personal circumstances or whether you need court orders.
Why should I do mediation and not go straight to the court?
The Family Court requires parents to attempt mediation prior to filing parenting related proceedings in the Court. A certificate is required (except in circumstances such as urgency).
The Court recognises the importance of parents working together in the best interest of their children. A Court decision means a Magistrate, someone who does not know your children, makes a decision about where the children will live. This means a stranger effectively makes decisions about your life without a lot of control by you.
Mediation allows the parents to make decisions best for their children.
Is mediation confidential
Yes, absolutely. It is a safe place for discussion. What is said in mediation is to remain confidential. This allows parents to make concessions and discuss options openly without fear of it being used against them in Court.
It creates an environment where the parents can have real conversations, sometimes for the first time since separation.
Can my lawyer attend mediation?
Lawyer-assisted mediation is an option available to parties. This is helpful for complex asset pools, complex parenting issues and where both parties are represented.
Generally, lawyers will attend if both parties are represented.
A lot of parents opt to attend mediation for parenting issues on their own without lawyers. They are encouraged to obtain legal advice before going into mediation so they are prepared and know what to seek.