Some of us upon hearing the terms, ‘divorce’, ‘property’, ‘financial’ and ‘dispute’, will probably conjure up images of emotion charged court proceedings where one party is left desolate, while the other takes off with all of the matrimonial property and assets. However, the truth is rather more benign and most divorces don’t actually end up in court, and the parties more often than not, will reach some sort of agreement. Furthermore, the law encourages that parties whose union has come to an end, engage in the mediation and conciliation process – and in most instances, it is mandatory to do so.
The Family Court from the outset encourages parties to seek mediation, with an emphasis on actions of litigation as the absolute last resort if the conciliation process has failed.
The Family Law Act (the FLA) refers to mediation as ‘family dispute resolution’ and is defined in s 10F as:
“a process (other than judicial process):
(a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and
(b) in which the practitioner is independent of all the parties involved in the process.”
There are numerous considerations that mediators should make when dealing with parties to a divorce, such as: duty of care, bias, or any other ethical dilemmas that may arise to ensure that the parties to mediation is given every opportunity to reach a satisfactory result.
Before parties commence with the mediation process, private family mediators, or other family mediation services, usually undertake a pre-mediation process assessment in regards to matters that fall under the auspices of the FLA.
The assessment is carried out to make sure that the parties are intent on engaging positively with the mediation process. Furthermore, mediators want to ensure that both parties will be safe from harm and will make a further assessment on whether or not mediation is suitable for the parties involved.
When making a pre-mediation assessment, mediators can take into account some of the following when judging the suitability of the parties to engage with the family dispute resolution process:
- any fears or risk of violence between the parties
- allegations of child abuse
- the bargaining power between the parties
- mental illness or intellectual disabilities which may affect the process
- an unequivocal statement by one of the parties that they will not participate in the process
- bad faith bargaining
- threats of child abduction or violence
- the capacity of the parties to make a ‘genuine effort’ in mediation
- the capacity of both parties to safely negotiate with one another
- any relevant court orders.
Ultimately, the pre-mediation process is carried out to ensure that the parties will enter into mediation in good faith, with a willingness to positively engage with one another. Additionally, the pre-mediation process will also give a mediator the opportunity to make an assessment on the power dynamic within the relationship, whilst also ensuring that a certain level of trust is established between the parties, as well as the mediator.
The mediator’s duty of care to the parties
Mediators, to the best of their abilities, owe their clients a duty of care from any potential harm that may arise during mediation, as well as owing a wider duty of care to any children that may be negatively affected by the mediation process.
When can the mediation process be terminated?
If the mediation process has commenced, but various issues have surfaced which has resulted in the process to be abandoned, a mediator can issue a ‘genuine effort certificate’, or a ‘not appropriate certificate’ under the following circumstances:
- the other party did not attend
- both parties did attend, and made a genuine effort
- both parties did attend, but only one of the parties made a genuine effort
- the mediator did not believe it was appropriate to continue with the process.
The overriding objective of family dispute resolution is to minimise any court action because it can be an expensive and emotional process.
This article is only a brief overview in regards to mediation and issues relating to family law. If you have any concerns or question, always seek the appropriate legal advice.