What is the mediation process? The 9 steps + your legal FAQs

When we enter into a relationship – or start a family – we likely believe that we’ll always be able to resolve any problem amicably. 

Unfortunately, things change. And sometimes you may need help to resolve disputes and conflicts – especially where relationships may have broken down over time. 

Family law mediation is a great way of getting help to resolve family law disputes without having to go to court. 

Keep reading to learn about how the mediation process works, its advantages and disadvantages, and how to best navigate the situation when you’re going through it.

What is mediation?

Mediation is a type of dispute resolution that aims to resolve disputes between parties outside of the more adversarial court system. People often come to mediation to help them  to reach agreement around property division and parenting arrangements. It utilises an independent, neutral third party as a mediator, who is also often an expert in the areas in dispute.

What are the benefits of mediation?

There are a lot of benefits of mediation.

1. It is completely confidential.
2. Mediators are independent and neutral third parties.
3. Agreement allows you to avoid a lengthy and stressful court process.
4. You’ll be able to choose a mediator who is an expert in the area of dispute. For example, you can choose one who has a background in finance for your property division.
5. You are able to explain your needs, and enter into negotiations, in a safe and supportive environment.
6. Creates a favourable environment for making joint decisions.
7. Improves communications between parties and facilitates negotiations and agreements. 
8. It can be organised quickly and discreetly. 
9. It’s far less expensive than the court process.

What are the disadvantages of mediation?

Of course, there are also some disadvantages to the mediation process.

1. The success of the mediation depends a great deal on the abilities of the chosen mediator.
2. A mediator needs to be agreed to, which can sometimes be an issue.
3. Parties may feel pressured to settle just to ‘get it over with’ or because they just don’t have the financial resources to go to court.
4. The parties and their lawyers have to be properly prepared and will need  to be vigilant in ensuring all the correct disclosures and valuations are made. 
5. Mediation is not appropriate in many domestic violence cases.

What is the role of the mediator?

The mediator’s primary role is to help the parties understand the issues in dispute and guide them to come to a resolution of those issues. Their job is not to decide the issue or give advice. However, they do help the parties to focus on the important issues and navigate the emotional upheavals that the parties may experience during the process.

They also have specific duties during a mediation. These include:

• Conducting the mediation in a fair and unbiased manner.
• Withdrawing from mediation if they can’t remain impartial.
• Making reasonable inquiries to ascertain where potential conflicts might arise. 
• Ensuring the mediation remains confidential.
• Avoiding a conflict of interest.

What is the mediation process?

The mediation process itself is fairly straightforward.

Step 1: Choose a mediator

The parties involved in a dispute choose a mediator. Generally, this person will have expertise in the particular area of the dispute. If you’re looking for a mediator, we’re happy to help make a referral from our experienced panel. Our mediators have considerable family law experience in family law disputes.

Step 2: Intake assessments

The mediator may conduct an intake assessment with each of the parties individually. If the parties are represented by a lawyer, then the lawyer will attend as well. 

During this assessment, the mediator will determine what issues need to be dealt with. They’ll also discuss and decide the best way to approach the mediation. Some mediations may be done jointly, with all participants in the same room. Some may be done individually in a method known as shuttle mediation. Here the participants are in separate rooms and the mediator ‘shuttles’ back and forth to gather and share information between the parties. 

Many mediations can also be conducted by a video conferencing platform such as Teams. This can help to keep the parties from coming into physical contact with each other. 

The intake assessment will allow the mediator to see which method will work best for your situation.

Step 3: Opening statement

Once the session commences, the mediator will start with an opening statement. Here they’ll explain their impartiality, the confidentiality requirements and the steps that will be undertaken during the process.

Step 4: Goals

During the next step, the mediator will ask the parties to lay out their goals or expectations from the mediation process. The mediator will then summarise those statements for all the parties. 

Step 5: Common ground

The mediator will identify any common ground that the parties have. For example, the parties may already have agreed on how they want to dispose of the family home[link to new article]. These items will not need to be discussed in the session.

Step 6: Agenda set

The next step is for the mediator to set an agenda. This lays out the issues that still need to be resolved. The mediator will ask the parties to prioritise the agenda items as well, to ensure they’re dealing with the most important first. 

Step 7: Negotiations

The parties then undertake negotiations about each agenda item. Each party – led by the mediator – will have the opportunity to lay out their concerns, interests and needs when it comes to each item. 

These discussions will lead to options and possible solutions. Each of these will be discussed and considered.

What should you not say in a mediation?

Mediation can be a delicate process. So during negotiations, you’ll want to ensure that you listen to your lawyer and take their advice on what you should or shouldn’t say in your particular mediation. But some things to be aware of that you shouldn’t say include:

• Shouting or swearing throughout the process.
• Talking over the other party. 
• Saying disrespectful things to the other party or the mediator.
• Anything that might make the other side think you’re refusing to participate or engage with the process.

Step 8: Private sessions

If emotions run high, or negotiations stall, the mediator can utilise separate private sessions to discuss and refine the options. They can also be used to simply calm tensions and help bring the parties back to the negotiation.

Once the private sessions have concluded, the mediator will bring the parties back into the joint session – or resume the shuttle approach. 

Step 9: Agreement documentation

If the parties are able to reach an agreement – and over 70% of the time mediation is successful – then the mediator will help the parties document their agreement for filing Orders with the court or entering into a Binding Financial Agreement. If they are not successful, they may need to come back for another mediation session at a different time. Or the parties may decide that it’s time to seek court orders or have an arbitration hearing.

How long does the mediation process take?

There’s no single answer to this question. Depending on the number of issues being addressed, and the complexity of those issues, it can take anywhere from a few hours to a few days. The vast majority of mediations in Australia settle within 30 days. 

What is the most difficult part of the mediation process?

One of the most difficult parts of the mediation process is actually believing that the process can work. Despite the statistical evidence that shows the effectiveness of the mediation process, many parties struggle with low confidence. This can sometimes lead to an unwillingness to participate or engage in the process.

What cases will benefit from mediation in family law?

There are many cases that will benefit from mediation, particularly in family law. These include:

• Conflicts arising in divorce and separation
• Child custody issues
• Disputes between family members

There are also times when mediation won’t be appropriate, despite the Court’s preference for it. This might be where there is the risk of family violence or the situation is very urgent. In those cases, you’ll want to speak to your lawyer immediately, so you can work together to resolve the issue with the Court quickly.

How we can help at Australian Family Lawyers

At Australian Family Lawyers, we can help you understand the mediation process. We can help you organise a mediation that can resolve your family law disputes in the best interests of you and your family and keep you in control of the process. You can also learn more about the divorce process in Australia here.

If you’d like to chat, get in touch directly or request a call back from our friendly team via the form below.