Going through a divorce is a hard thing. In fact, it’s likely the last thing you feel like doing is sitting around a table with your separated partner to try to discuss your concerns openly and honestly. Likely, feelings are hurt, trust is diminished and feelings of love have been replaced by feelings of bitterness.
Here are 7 good reasons why you should consider mediation in a family law dispute.
1 – It’s the law
If you need to sort out parenting (custody) arrangements, then the law says you must try mediation before going to court. There are some exceptions to this that mainly revolve around serious domestic violence and/or a child being placed at imminent and serious risk of harm.
The law says that you must at least attempt mediation before litigation. You must obtain a Certificate from a suitably qualified mediator to say you have at least attempted mediation.
Furthermore, most judges will require parties to property settlement disputes to attend mediation before the matter can proceed to Trial.
2 – It helps preserve relationships
If there are children involved, it’s worth remembering that you and your separated partner are going to be parents for the rest of your lives. That’s right – the rest of your lives. It doesn’t end when your child turns eighteen, or moves out of home, or any other circumstance. You and your former partner will be parents together for the rest of your lives. There’s marriages, graduations, grandchildren, etc, to look forward to. Taking someone to court is not likely to endear them to you, and certainly won’t aid your long-term relationship. Really, when all is said and done, going to court is going to war (and we all know how less effective, wasteful and tragic the effects of war can be).
Basically, it just doesn’t make sense to destroy the ongoing parenting relationship so critical to the happiness and wellbeing of your children before first attempting a collaborative and communicative approach.
3 – It’s flexible
You can spend as much time as you need with a mediator to explore interests rather than positions. For example, you can deal with concerns such as “I’m concerned that Johnny doesn’t do his homework properly or go to be bed early enough on school nights while in the other party’s care” rather than positions such as “I’m not agreeing to Johnny spending school nights in the other party’s care”. The court simply doesn’t have the resources to explore every possibility as to what may constitute a fair outcome. This is often referred to as the “broad brush” approach. However, in a mediation you can explore possibility to your heart’s content, and usually with a greater likelihood of a successful outcome.
4 – It’s empowering
It’s extremely empowering for the parties to determine their future rather than have a third party (like a judge) impose a decision on them. Reaching agreement sets a positive precedent for future communications between the parties. It also feels much better to decide your own future rather than have someone else, who has limited information about your family situation, make these decisions on your behalf.
5 – It saves you time and money
A mediation can be organised and convened within weeks, or even days if the parties are adequately prepared. Litigation can take months, or even years.
However, the less time a dispute runs for the less financial cost it causes those involved. Litigation will generally cost around 10 times more than mediation. For this reason, it’s often said the only winners in litigation are the lawyers!
6 – It reduces stress
This is closely related to the reduction in time. The less time a dispute runs for, the less stress it causes those involved. Essentially, litigation places a huge mental and emotional toll on those involved.
Also, the procedure of a mediation is a lot more laid back than the formal court environment. Therefore, mediation results in far less stress on your and your loved ones than lengthy litigation.
7 – It’s strictly confidential
Nothing said in a mediation can be used in court. This aspect of mediation is referred to as being “without prejudice”. Thus, parties are free to speak openly, as everything said in a mediation is strictly confidential to the extent allowed by the law.
Having said that, parties should always be guided by their lawyer as to what they should or shouldn’t openly discuss in a mediation, to ensure they don’t lose a significant tactical advantage if the process doesn’t result in agreement and litigation follows.
While there will be many other good reasons to mediate, these 7 reasons should give you enough food for thought to try mediation before litigation.
If you would like to obtain family law advice specific to your personal circumstances, please contact me on: richard.mahler@mahlerfamilylaw.com or (07) 4638 0811.
Best of luck in the journey that lies ahead.
Disclaimer: This is an opinion piece, and is Family Law information, not to be taken as Family Law advice.
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