Published on April 21st, 2020 | by Sumit Bhowal


Family Law: How is Mediation Different From Settlement?

The breakdown of familial relationships can often have a detrimental impact on both the conflicting parties and the remainder of the family. The experience of separation or divorce is unsurprisingly stressful and highly emotional. Children, at any age, may feel like their whole world has been flipped upside down leaving them traumatized, shocked and at some point, feeling like they are alone. Family lawyers in Melbourne can provide you with practical, honest and child-oriented legal advice during the separation process to ensure the preservation of relationships.

What Is Family Mediation?

Family Mediation is the process in which a neutral and independent third party referred to as the mediator, aids disputing parties in negotiating an agreement that is mutually accepted. Alternative Dispute Resolution (ADR) is the umbrella legal term used for processes such as mediation. Under the Civil Procedure Act 2010 (Vic) the purpose of the legislative framework is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’ (s7(1)), mediation typically achieves these purposes effectively.

What Is The Mediators Role In Family Mediation?

In the context of family law, the Family Law Act 1975, mandates Family Law Mediation before an application for parenting or financial orders can be filed. The role of the mediator is to facilitate discussion between the disputing parties and promote a sense of understanding and reconciliation within the environment. They aim to aid parties in reaching an agreement amongst themselves while remaining completely impartial. The essential function of the mediator is to manage the discussion and encourage a resolution. A mediator does not make recommendations on how to reach a resolution nor do they suggest what the resolution should be, they are simply there to guide conversations and ensure cooperation between parties without any intimidation, threats or insults. In doing so, the mediator can remind the parties to take a less competitive approach and understand the views of the other person- this may be difficult in scenarios where there has been a significant breach in trust since regaining trust is a difficult task.

What Is The Lawyers Role In Family Mediation?

Lawyers are not usually present during family mediation sessions with their clients. The role of the family court lawyers in Perth is therefore altered to a legal consultant rather than an adversarial negotiator since this function is left with the mediating parties instead. Essentially, lawyers simply advise their clients of their legal rights before they enter into a mediation session and also review any agreements signed.

How Does Communication Differ Amongst Parties?

During settlement meetings, communication usually occurs through clients lawyers rather than direct communication between the disputing parties. This process may encourage further hostility, damaging family dynamics even more so.

In comparison, mediation empowers parties to conversate face-to-face in the presence of a mediator facilitating discussions. Mediation thus has the potential to preserve relationships and speed up the resolution process since the negotiating parties mutually agree on the outcome.

However, it is a common occurrence for parties entering into a mediation session to lack the right communication skills to be able to converse with the disputing party. The significance of the mediator is especially important in such scenarios. A trained mediator will be equipped with the necessary skill set to encourage discussions and ensure that each party’s concerns are heard.

If you are currently in a situation where your family relationship has broken down, consider taking part in family mediation in order to be able to come to a collaborative decision with the disputing party. To ensure your rights are protected and you fulfil your legal obligations, seek the advice of family lawyers to aid you in the early stages of resolution.

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