At Move On Mediation, we get lots of questions from our clients. So we thought we’d do a blog to cover some of the most common questions about divorce mediation that people ask us when they are considering mediation.
Question 1 – How will divorce mediation help me?
Almost certainly, divorce mediation will be of significant benefit to both parties.
First, it is much quicker, cheaper and less stressful than the alternative – going to the Family Court.
A significant factor is that, quite simply, it works. Records of mediations conducted since we started Move On Mediation in 2016 show a “success rate” of between 80% and 90% (where all or most issues on the table were resolved).
Under the family law, before commencing action in the Family Court, parties must attempt to engage in alternative dispute resolution (mediation is a form of ADR). There are a small number of strictly defined exceptions to this rule, e.g. family violence. Family Law Dispute Resolution Practitioners (FDRPs) may issue Certificates to enable parties to go to Court without prior mediation.
The parties involved in mediation are in control at all times; as nobody can force you to accept any term with which you are not comfortable (unlike the Court process where a judge simply decides what is going to happen).
Mediation can take place in separate rooms and parties may have a support person to help them.
Question 2 – Do I need to hire a divorce lawyer as well?
The quick answer is no.
Divorce mediation provides a second layer of protection, by allowing you to consult your own lawyer at any time on any point of dispute before deciding whether to accept or reject it.
If both parties agree, they may also bring their lawyers to the mediation. Before signing the final agreement and filing it in Court, either spouse is free to seek a second opinion from their own lawyer for that extra peace of mind.
An important point to keep in mind: mediators are totally impartial and are looking to assist you find agreement. Mediators are looking for common ground and, where there is disagreement, to find pathways to resolution. They provide sound guidance about your rights and responsibilities to enable you to make your own decisions and facilitate an amicable settlement of your own choosing. Lawyers, on the other hand, are looking to maximize the strengths of their clients’ cases and accentuate the weaknesses in the other side. Consensus versus confrontation.
Question 3 – Are divorce mediation sessions confidential?
Unlike a court case, which parades the facts before all and sundry, mediation is a strictly private and confidential affair. Mediators are bound by strict confidentiality rules and will not disclose any information to anyone else, unless required to do so by law, e.g. where a child may be in danger.
Whatever is said or recorded during mediation cannot be used in evidence presented to the Family Court. It is that confidential!
This encourages both spouses to be completely open and to divulge personal and sensitive information, without the fear of it leaking out. This transparency paves the way to an amicable settlement much sooner.
Question 4 – How many mediation sessions will we need?
There is no straight answer to this question but there is a significant history to point to what is likely to happen.
Consider this – action in the Family Court is a formalised process where each side puts forward its strongest case and best points and attacks the other side, substantially by highlighting their weaknesses. Lawyers are engaged “to win”, whatever that may mean (as nobody wins where a significant part of their assets disappear in legal fees over years of a battle that alienates everyone from each other; the “ripple effect” is huge). Lawyers’ skin in the game is demonstrated by impressing their clients. People who come willingly to mediation do so because they want their matters settled, not because they are looking for a fight. It might be difficult and stressful, but the aim of the mediation game is to find a solution, not to engage in pitched battle. And a mediator’s role is to facilitate and encourage agreement – go looking for it, be transparent and open so that no-one feels disrespected by the tactics or approach of the other.
That’s why mediations are so often successful – they represent a search for solutions and encourage pragmatic compromise. That’s why mediations don’t end up in endless hours of dispute and argumentation. At Move On Mediation a significant majority of matters are resolved within half a day and even less, 2-3 hours.
And, no matter how long mediation does take, it will be still far quicker than battling it out in Court, where it may drag on for years and cost tens of thousands of dollars.
Mediation is a voluntary process. The parties participate because they want to find solutions; they are not forced to be there as is the case in a significant number of Family Court cases.
Question 5 – What happens if we can’t agree at mediation?
Clearly, divorce is a very stressful and traumatic time for the entire family, especially where children are involved; emotions and stress are bound to run high. It is to be expected that there will be several points of dispute along the way and some may not be easily resolved. Mediators undertake extensive training to equip them to assist both parties to explore possible solutions to avoid going to Court.
If spouses cannot agree any significant issue it will have to be decided by a Judge of the Family Court. The implications of this should be very clear – more stress, more conflict, financial pressures, lives on hold and the ever-increasing ripple of others getting involved and being impacted by the divorce.
And remember, even if some issues do have to go to Court, the relatively small amount you have invested in mediation will have resolved at least some of the issues which then do not have to be argued in the Family Court.
Question 6 – What happens if we agree all the issues at mediation?
Reaching an agreement through mediation is a significant step and, from then on, the objective is then dealing with the administrative processes to get it all finished legally.
The next stage is for your mediator to provide the Guide to enable you to apply for and obtain Consent Orders and/or to prepare a Parenting Plan.
Every mediator’s primary goal is to offer impartial assistance to both parties to enable them to make their own decisions and reach an agreement, thus avoiding a lengthy, stressful and costly legal procedure.
When both parties are also willing to be fair and reasonable in their demands, there can be no doubt that divorcing through mediation will be the best choice they make.
Do you have any questions about divorce mediation we haven’t answered here or on our divorce mediation process outline here?
Get in touch with Ian to ask your questions about divorce mediation now.