By Melissa Hine – Special Counsel
Mediation is a form of dispute resolution available to separated parties. It is a confidential process, meaning that the matters discussed during mediation cannot later be repeated in Court.
A financial mediation provides parties with the opportunity to settle their property matters and other financial issues, such as spousal maintenance and child support.
Private mediation without any court proceedings
Before starting court proceedings in the Federal Circuit and Family Court of Australia for a property settlement, a party must invite the other party to participate in mediation, if it is safe to do so. Both parties must make a genuine effort to resolve the dispute.
As a result, many separated couples engage in private mediations, without there being any court proceedings on foot.
At a private mediation, both parties are usually represented by lawyers and another lawyer acts as an impartial third party mediator. The mediator is often a barrister with mediation training and family law experience. The mediator assists the parties to resolve, or at least narrow, the issues in dispute.
The mediation can be for either half a day or a whole day. Parties usually share the costs of the mediator’s fees and venue fees equally.
Mediation during court proceedings
If court proceedings are commenced, the Court will normally require parties to participate in a private mediation (or further private mediation if one has already occurred before proceedings are commenced) or a Conciliation Conference.
A Conciliation Conference is a Court ordered mediation for small property pools. It is funded by the Court. A judicial registrar, who is a lawyer working at the Court, meets with both parties and their lawyers. The judicial registrar assists the parties to try to reach an agreement. The Court usually allocates a few hours for a Conciliation Conference. If agreement is reached, the judicial registrar has the power to make final court orders on the day.
Judicial Settlement Conference
In some circumstances, if parties have already been unsuccessful in resolving their issues at a private mediation or Conciliation Conference, the Court might require the parties to participate in a mediation with a judge. This is known as a Judicial Settlement Conference (JSC).
In a JSC, the judge assists the parties mediate their dispute. Whilst the JSC is held in a Court room, and conducted by a judge, the documents prepared for it and the discussions that occur during it are confidential and cannot later be repeated or produced in Court. If agreement is reached, the judge can make orders on the day. If agreement is not reached, the matter will proceed to a hearing before a different judge.
We can help
Our family lawyers are experienced in private mediations, Conciliation Conferences and Judicial Settlement Conferences. We can help you reach agreement with your former partner or obtain Court assistance in resolving and/or determining your settlement.
Once a settlement has been reached, we can prepare the most suitable documentation for you, to formalise your agreement. If you have recently separated or are thinking about separation, and need advice about your financial settlement options, call us on 03 8672 5222 to make an appointment with one of our experienced family lawyers
