What happens after family mediation depends entirely on whether you reach agreements on all, some, or none of the issues you are seeking to resolve.

As a trusted and accredited family mediator in Perth, we’re proud of the fact that around 90% of our mediations conclude with complete or, at very least, substantial agreement being reached by the parties.

Here’s what you need to know about what happens after family mediation has concluded.

What Happens After Family Mediation

The outcome that is reached at family mediation will determine what happens next.

Complete Agreement Is Reached at Mediation

This is the best possible outcome and the objective that family mediators always strive to achieve.

Once agreement is reached covering all of the issues that have been brought to the mediation, the family mediator will draft the agreement that can be used to submit as a Consent Order in the Family Court or, if required, a Parenting Plan for signature by all parties. Any party may take the proposed agreement to their own lawyers for a second opinion before signing.

Children’s Issues

Parenting Plans and Consent Orders dealing with children’s issues can deal with any and all aspects of parenting arrangements for children after a divorce or separation.

The most significant difference between a Parenting Plan and Consent Orders is that a Parenting Plan is not legally binding or enforceable, whereas a Consent Order is issued by the Family Court and is legally binding and enforceable in that Court.

Parenting Plans are flexible and informal arrangements that can be amended by mutual consent without the need to go to Court. Consent Orders can only be amended if there is provision in the Orders permitting proposed amendments; otherwise changes to Orders can only be made on submission to the Family Court.

Parenting Plans are often used where both parties have reached an amicable settlement and the risk of breaching the terms are low. A Parenting Order, on the other hand, may well be be more appropriate in cases where there is underlying conflict or there are concerns that a party may not adhere to the terms of the agreement.

The terms of a Parenting Order (whether made by consent or otherwise) must be strictly adhered to. Failure to comply with the terms of an Order is a serious matter and the Family Court can impose a wide range of penalties including fines or, in exceptional cases, a prison term. Repeated breaches of Orders may result in a parent losing the right to have the children spend time with them.

Financial Issues

Where complete agreement has been reached at family mediation regarding financial settlement there is really only one option: have the mediator draft the terms of the agreement in the appropriate manner and file this in an application for Consent Orders in the Family Court. An informal agreement has no legal effect and cannot be enforced. As with Parenting Orders, parties may seek the advice of lawyers about the terms of any proposed Consent Orders finalising the parties’ financial affairs  before filing in Court.

There is one other possibility to conclude the financial relationship – entering into a Binding Financial Agreement (“BFA”). But this will require all parties to obtain certified independent legal advice and compliance with several formalities. A family mediator is not in a position to prepare a BFA and you should seek independent legal advice from a properly qualified family lawyer if this is the path you wish to go down.

Partial Agreement Is Reached at Mediation

If parties engaged in a mediation of children’s issues are unable to reach an agreement that covers all of the parenting issues but wish to have binding and enforceable arrangements they have no choice but to take matters to the Family Court where a Judge will make the final decision. This can be extremely costly for all parties, is likely to take years rather than months and will almost certainly increase the level of conflict between the parties.

The same applies to financial settlements that could not be completed at mediation.

The positive from mediation is that the parties have been able to isolate those specific issues upon which they cannot agree. The more issues you can resolve at family mediation, the less decisions you leave in the hands of someone else.

No Agreement Is Reached

Although family mediation is the simplest, quickest and least costly way of divorcing in Australia, it is not always successful, especially in situations of high conflict.

If no (or only partial) agreement can be reached at family mediation, the mediator will issue a Section 60I which enables the parties to take their matters to Court.

In some matters, family mediation may not be appropriate in any event and divorcing or separating couples can take their matters straight to the Court without the need of an Section 60I Certificate. These may include the following:

• a risk of violence or abuse
• urgency
• a party is physically or mentally handicapped and cannot attend mediation
• a party has a history of disregarding Court Orders
• either party being in a remote area and too far from a mediation practitioner.

In such cases, professional legal advice is strongly recommended.

If you are ready to start family mediation and move on, get in touch with Ian today and book your family mediation session.