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Family Separation Without Going to Court

Resolving family separation through mediation

During a family separation the best thing for everyone involved is to resolve all issues amicably and as early as possible.

Studies show the negative impact of ongoing conflict on children and parents as a result of family separation. It is often a delicate balancing act between the parties seeking their just entitlements and making compromises to promote future harmony.

In some cases, there are difficult legal issues that can only be decided by a Court. But in the majority of cases it is beneficial for the parties to engage in Mediation or Alternative Dispute Resolution services soon after separation.

For parenting matters there is a requirement that parents attend mediation and attempt to reach agreement prior to making an Application to Court. There are exceptions to this rule for urgency, family violence, or risk/abuse of children.

Mediation for family separation

Mediation is the most common form of dispute resolution. It can be either private (with a Mediator funded by the parties) or through government subsidised agencies such as Relationships Australia or the Family Relationships Centre.

Benefits of early mediation:

1. Reducing future conflict and enabling future cooperation between parties. Contested Court proceedings can increase conflict between the parties;
2. Enabling the parties to make the decision themselves, rather than a Court imposing terms;
3. Reduced legal costs;
4. Early resolution – the Court process can take 6 to 18 months in many cases

There are reduced costs involved with using the government subsidised agencies but there are significant delays in accessing these.

Mediation can occur with or without the parties having legal representation. Legal advice before, during or after mediation is recommended.

Mediators do not provide the parties with legal advice as their role is to facilitate the parties discussing their issues and assisting them in reaching agreement.

The mediation process is confidential (unless there are statements of serious risk of harm made) and the discussion at mediation are “without prejudice”, meaning they are be binding to a Court.

Mediation is not for every situation

Not all family separations are suited to mediation including where there has been family violence or there is an imbalance of power between the parties.

Some mediation involves the parties talking to each other in the same room with their legal representatives and the mediator present. In other circumstances a shuttle mediation is more appropriate. This is where the parties do not have contact with each other and the mediator moves between the rooms.

If the parties do reach agreement at Mediation, the legal representatives can in some cases prepare appropriate documents for the parties to sign prior to leaving the session. These documents can resolve all matters and later be filed in the Courts as Consent Orders for both Children and Property Settlement matters.

Our Family Law team can help

If you would like some advice on what your rights, responsibilities and what to expect during a family separation please contact our expert team for a consultation.