How to: Mediation in the Family Court

Introduction

In legal disputes involving family matters your lawyer may suggest a mediation conference as a way of resolving the dispute without formal court proceedings. If formal proceedings are begun in the Family Court, the court will usually start by arranging free counselling for you, and if that doesn't work, the court will usually refer you to a mediation conference.

Mediation conferences are a way of allowing the parties to reach a decision about the dispute themselves, rather than having one imposed on them by the court. Successful mediation considerably reduces the legal costs to the parties, and also reduces the workload of the courts.

Who can request a mediation conference?

When an application has been made to the Family Court for a separation order or an order dealing with maintenance or day-to-day care of or contact with children, either party can ask the court Registrar to arrange a mediation conference. A Family Court judge can also ask for a mediation conference to be convened.

Can I be forced to attend a mediation conference?

Yes. You can be summonsed to attend a mediation conference – in other words, the judge can require you to attend.

What happens at the mediation conference?

The conference will be held at the Family Court and will be chaired by a Family Court judge. The judge will help the parties identify the issues that need to be resolved and then help them find agreement and practical solutions.

Mediation conferences are held in private. Any statements or admissions made at a conference are confidential and cannot be used against either party later in court.

The judge records in writing the matters on which the parties have agreed, and those on which it has not been possible to reach agreement. This record is filed in the court.

Do lawyers attend?

The parties' lawyers may be present at the conference to assist and advise them. However, it is generally considered desirable for the parties to speak for themselves at the conference rather than through their lawyers.

If day-to-day care of or contact with children is in issue, any lawyer appointed by the court to represent the child ("lawyer for the child") may also attend.

Can I have a support person at the mediation conference?

Support people and wider family members can attend if the judge allows this and no-one else objects. If they do attend the mediation conference, and it's a dispute about day-to-day care of or contact with children, they also have the right to be at any later Family Court hearing if mediation doesn't resolve the dispute.

Consent orders

If the parties reach agreement on a matter, the judge chairing the conference can make an order giving effect to the agreement. This is called a "consent order" and is enforceable in the same way as a court order. Consent orders can deal with:

  • separation
  • day-to-day care
  • contact
  • maintenance
  • the division of relationship property

If one of the parties does not have a lawyer or his or her lawyer is not present, a consent order can only be made if that party states expressly that he or she does not want the conference to be adjourned so that he or she can obtain legal advice.

Cautionary notes
  • Disputes involving family issues can be difficult and emotional. A lawyer can ensure that you are aware of your rights throughout the mediation process and that any agreement reached fully protects your interests.


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