Many clients ask ‘is divorce mediation legally binding?’.
Once couples have made the decision to divorce, they usually want to ensure that this painful will be achieved quickly, without undue stress and not costing an arm and a leg.
The best way to achieve this is through divorce mediation. Before deciding or agreeing to this process, it’s important to understand whether agreements reached at divorce mediation are legally binding and at what point do they become legally enforceable.
Do Divorce Mediators Provide Legal Advice?
Mediators accredited by the National Mediators Accreditation Scheme who are engaged in mediation of issues under the Family Law do not provide independent legal advice. Their role is to help both parties find an agreeable and fair outcome to their issues.
However, if the mediator is also legally qualified (and registered as a lawyer in the relevant State), they are entitled to provide an opinion about how the law would regard proposals that are raised at mediation to settle matters.
This allows them to bring all their experience and knowledge of family law into the mediation and focus only on assisting you both to find an amicable solution. So, it is important to be aware of the experience, qualifications and legal expertise of your mediator.
What Is “An Agreement Reached At Mediation”?
An Agreement Reached at Mediation is a document setting out the terms and conditions of settlement of family law issues agreed between the parties to a mediation. It may deal with financial settlement or matters regarding ongoing arrangements for children; it might deal with both. It is not a judgement handed down by the Family Court, although the parties now have the power to give it this status by filing it in Court and asking the Court to formally agree to the terms of agreement.
Although this is but one of the steps towards a final and binding legal settlement, it may be the most difficult obstacle to overcome before finalising your relationship and the ongoing financial and children’s issues that have to be dealt with.
An Agreement Reached at Mediation is, indeed, a monumental step and, moving forward, the process becomes easier and requires administrative action to formalise. Emotions begin to subside.
The next stage is to make your agreement legally binding.
How Do Agreements Reached At Mediation Become Legally Binding?
Any agreement becomes legally binding and enforceable only after it is formally approved by the Family Court. It should be attached to an Application filed in Court by the parties (a Form 11 Application for Consent Orders).
The Agreement Reached at Mediation will be prepared by your mediator as “Draft Proposed Orders” and can be used and attached as the Court Orders sought by you in your Form 11 Application.
Mediators are not permitted to act for either or both parties but may provide general advice and explain each party’s rights and responsibilities. They can also advise how the Family Court is likely to respond to the terms of any proposed agreement, whether the agreement is fair and reasonable and within a range which the Court is likely to accept. Move On Mediation will provide a detailed Guide about the Consent Order process and, if parties want to obtain professional assistance for the Application, will recommend reputable family lawyers who will take you through this final step in the process.
Before completing and filing your Application in the Family Court you still have a further layer of protection as all parties are entitled to take the agreement to an independent lawyer, if you so wish, before proceeding further. Independent legal advice is not a requirement to proceed with an Application to the Family Court.
What Does a Consent Order Cover?
A Consent Order will cover the complete finalisation of your property distribution. It may also cover such parenting arrangements as have been mutually agreed at mediation.
Parenting Orders may be as specific as you want them to be, provided they are seen to be in the best interests of the children. For example, they may stipulate with whom the child or children will live, the time(s) they may spend with the other parent, how and with whom holidays and special family, religious and traditional celebrations are spent and even whether contact with extended relatives, such as grandparents, uncles, aunts, cousins can be maintained.
Orders for financial settlement also need to be equitable and fair before they will be approved by the Court. They may cover all aspects of your former financial relationship, such as the transfer or disposition of real estate, businesses, investments, movable assets, inheritances, insurance policies and any other financial resources as well as liabilities.
Consent Orders do not cover child support issues; financial support for children under 18 have to be dealt with through the processes set up with the Child Support Agency.
Is Legal Advice Required Before Signing Any Agreements?
Independent legal advice is not required before signing an agreement reached at mediation or for the Application for Consent Orders. Where a legally binding financial agreement (Binding Financial Agreement) or child-support agreement (Binding Child Support Agreement) is sought, the law requires that you have prior certified legal advice.
Your mediator would be the best person to advise about these processes.
What Happens If We Can’t Reach An Agreement At Mediation?
While Move On Mediation has a success rate of around 90% in getting matters resolved at mediation, it is possible that you and your ex-partner may not reach agreement on every issue during your divorce mediation. In this case, you will have to resign yourselves to spending a lot more money as these, perhaps few, unresolved issues will now have to be settled in the Family Court (whether you use family lawyers or not).
In these circumstances the money spent on mediation will still be worth it, as many of the issues may have been agreed and the issues to be argued in the Family Court will be reduced considerably, making the process much smoother.
So, if both ex-partners are genuinely committed to ending their relationship respectfully and as painlessly and quickly as possible, then let divorce mediation through Move On Mediation in Perth take the stress out of this otherwise traumatic period the entire family will have to go through.