Is mediation necessary?

Mediation is a form of Alternative Dispute Resolution (ADR) where an impartial third party, known as a mediator, assists disputing parties in reaching a mutually satisfactory resolution. The mediator facilitates communication, promotes understanding, and focuses the parties on their individual and common interests.

In the realm of family law, mediation plays a pivotal role in managing property and parenting disputes following relationship breakdowns. Under Australian law, it is compulsory for separated parents to attempt family dispute resolution (a type of mediation) before applying to a family law court for parenting orders, subject to some exceptions for situations such as family violence or child abuse.

1. Efficiency: Mediation generally offers a swifter resolution to disputes compared to a court trial. This can save both parties valuable time.

2. Cost-effectiveness: Resolving a dispute through mediation can significantly reduce the costs associated with preparing and running a trial.

3. Flexibility: Unlike rigid court procedures, mediation provides parties with a level of control over the outcome. The process can be tailored to your specific needs, providing a more personalized approach to dispute resolution.

4. Less stressful: Mediation is less formal and intimidating than court proceedings, thereby reducing the stress often associated with legal disputes. This can be particularly advantageous in sensitive situations such as family disputes.

5. Finality: Settlements reached in mediation are generally only modifiable with the consent of all parties. This provides a sense of finality and allows parties to move forward.

Remember, the mediator doesn't impose a solution but assists the parties in finding their own resolution. The process encourages open communication, understanding, and collaboration, which can not only resolve the immediate dispute but also improve long-term relationships and communication.

While the Family law Act upholds the mandatory requirement for mediation before proceeding with court litigation, there exist several exceptions to this requirement. The courts may provide an exemption from issuing a certificate of mediation under the following circumstances:

1. Urgency of the matter: If the subject matter in question requires immediate attention and any delay caused due to mediation could further aggravate the situation, the requirement of mediation can be bypassed.

2. Instances of child abuse or family violence: If the court has reasonable grounds to believe that a party has been involved in child abuse or acts of family violence, mediation is not required. This also applies if there's a potential risk of child abuse or family violence by a party involved.

3. Inability to effectively participate in Family Dispute Resolution (FDR): In certain situations, a party may be physically or mentally incapable of participating in FDR effectively. For instance, if a party has a certain incapacity or resides in a location remote from an FDR provider, the requirement for mediation can be set aside.

4. Alleged contravention of an existing order: If your application is related to an alleged violation of a pre-existing order that was issued within the last 12 months, an exception can be made. This is especially the case if there are reasonable grounds to believe that the party, who allegedly violated the order, has exhibited a serious disregard for their obligations under that order.

These exceptions serve to protect the interests of the parties involved, especially in circumstances where the mandatory mediation process may not be suitable or beneficial.

Despite its many benefits, there are instances when mediation may not yield a resolution. In such cases, an accredited Family Dispute Resolution practitioner can issue a 'Section 60I certificate'. This certificate enables an application to a family law court and is typically issued to address a variety of situations.

It can indicate that both parties were present and made a genuine effort to settle the dispute, but were unsuccessful. Alternatively, it could indicate that one or both parties did not make a sincere effort, or that one party was absent. Moreover, it may signify that the mediator decided mediation was inappropriate under the circumstances. This is often the case in situations involving family violence or when the risk of harm to a party or the child is high. It could also indicate that the process could not be completed for some reason. For instance, if a party could not effectively participate due to incapacity or geographical constraints.

The Section 60I certificate enables parties to seek court intervention when mediation fails or is deemed unsafe. It ensures that in cases where disputes cannot be resolved through dialogue, parties still have access to a fair and legally binding decision through the court system.

Read more: Property settlement and spousal maintenance lawyers in Melbourne

To revisit our initial question - Is mediation necessary? The answer is a resounding yes. Mediation offers numerous benefits over traditional court proceedings, making it an invaluable tool for resolving conflicts effectively and efficiently.

However, mediation may not be mandatory if any of the exceptions spoken in this blog applies to your dispute. If such circumstances apply you will have the freedom to directly initiate a court application in resolving your dispute.

Considering these compelling advantages stated above, it is evident that mediation is not only necessary but highly beneficial in achieving peaceful resolutions and maintaining healthier relationships, particularly in family law matters.

If you're in the midst of a legal dispute or need guidance, we urge you to reach out to our dedicated family law team at MJ Legal. Our experienced professionals are ready to support you throughout the mediation process and provide the necessary guidance to help you achieve a satisfactory resolution.