Mediation before court in Australia: What you need to know

Justice Family Lawyers


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An alternative option to court proceedings, to resolve disputes collaboratively and cost-effectively..
Australia Litigation, Mediation & Arbitration
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When facing separation or divorce, court is not the only option. Mediation offers a powerful alternative, allowing you to resolve disputes collaboratively and cost-effectively.

Mediation empowers you and your partner to shape your future by fostering communication and collaboration. It helps navigate the emotional and financial strain of court proceedings, focusing on mutually agreeable solutions.

This article explores the intricacies of mediation, its suitability for various circumstances, and strategies to maximise its effectiveness. Learn how mediation can facilitate a smoother, less contentious transition during a difficult time.

Is mediation compulsory before going to court for family disputes?

Whether mediation is compulsory before going to court for family disputes in Australia depends on the specific circumstances.

In most cases involving children, you must attempt family dispute resolution (FDR) before applying for parenting orders. This means attending a mediation session with a registered FDR practitioner to try to resolve the dispute outside of court.

However, there are exceptions to this rule. If there are concerns about family violence, child abuse, or if the matter is urgent, you may apply for court orders without attending mediation. Additionally, if you and your former partner have genuinely tried to resolve the dispute through other means, such as negotiating directly or through lawyers, you may not need to attend mediation.

Mediation is not compulsory in property or financial matters but is strongly encouraged. The court may even order you to attend mediation if it believes it could help you reach an agreement.

Even if mediation isn't mandatory, it often offers numerous benefits, such as greater control over the outcome, reduced costs, and a less adversarial process.

Also read: If I Refuse Mediation Will It Go Against Me in Court?

What happens after a successful mediation, and what are the next steps?

Reaching an agreement through mediation marks a positive step towards resolving your family dispute amicably. But what happens next? Let's break down the steps that follow a successful mediation.

1. Formalising the Agreement

The first step is to formalise your agreement in a legally binding document. There are three main ways to do this:

  • Parenting Plans:
  • For agreements primarily concerning parenting arrangements, you can create a Parenting Plan. This written agreement outlines details like who the children live with, how much time they spend with each parent, and how decisions about their upbringing will be made. While not legally enforceable on its own, a Parenting Plan can be converted into Consent Orders to make it legally binding.
  • Consent Orders:
  • For agreements involving parenting and financial matters, or financial matters alone, Consent Orders are often the way to go. These are court orders made with the consent of both parties. They are legally binding and enforceable, providing greater certainty and security.
  • Binding Financial Agreement (BFA):
  • For financial matters, you can also enter into a Binding Financial Agreement. This is a private agreement between the parties that sets out the financial arrangements should the relationship end. BFAs are legally binding and can cover property division, spousal maintenance, and other financial matters. They do not require court approval but must comply with strict legal requirements to be enforceable.

Your mediator or lawyer can assist you in drafting these documents to ensure they accurately reflect your agreement and comply with legal requirements.

Also read: Advantages and Disadvantages of Mediation in Family Law Matters

2. Filing with the Court (if necessary)

If you have converted your Parenting Plan into Consent Orders, or if you have Consent Orders for parenting and financial matters, these must be filed with the Federal Circuit and Family Court of Australia (FCFCA) for approval.

The court will review the documents and, if satisfied that they are in the best interests of any children involved and fair to both parties, will make them into court orders.

Also read: Step-by-Step Process of Going to Court after Mediation in Australia

3. Moving Forward

Once your agreement is formalised and, if necessary, made into court orders, you can move forward confidently, knowing you have a legally binding framework.

However, circumstances may change over time, so it's wise to review your agreement periodically and adjust if needed.

Ready to explore mediation?

Mediation isn't just a legal process; it's a path toward a less stressful resolution. If you're facing a family dispute, don't let it escalate into a courtroom battle.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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