Co-authored by Chris Gosling
Are you navigating your way through a relationship breakdown? Do you need to work out how to proceed with respect to parenting matters and/or property matters with another party? This can include, but not be limited to:
- your former partner;
- a relative of your child/ren; and/or
- third party/ies that assert to have an interest in your property.
It's essential for prospective parties to understand that prior to commencing any Court proceedings, they must engage each other in dispute resolution, as per the Federal Circuit and Family Court of Australia (Family Law) Rules (FCFCOA Rules). Each prospective party is required to make a genuine effort to resolve their dispute before starting a case by:
- Participating in alternative dispute resolution such as family dispute resolution (pursuant to the Family Law Act), negotiation, mediation and/or family counselling;
- Exchanging a notice of intention to commence proceedings and exploring options for settlement by correspondence by making a genuine offer of settlement; and
- Complying, as far as possible, with the duty of disclosure pursuant to FCFCOA Rules.
It's important to note that to participate in mediation you do not need to have legal representation. However, given the formalities surrounding pre-action procedures, it is advisable to receive legal advice prior to committing to attending mediation.
You can discuss your options of a mediator with a lawyer, as they can offer expertise as to mediators' different styles and requirements. It is also proper practice to nominate different mediators to the other party to choose from or vice versa. Once a mediator and a date are selected, there are some handy tips as to how your lawyer can assist you. To that end, this article discusses the benefit of having a lawyer assisted mediation and how to best prepare for mediation with your lawyer.
Five things to assist you during dispute resolution/mediation
To ensure your parenting and/or property matter commences in the right way, there are at least five things that you and the lawyer you engage on your behalf, can do to assist you when involved in dispute resolution/mediation:
- Listen: While you may not agree on what the other party is saying, it's important to listen to what's important to them. This way, you can trade off what's important to the other party for something that's important for you.
- Asking questions: It's important for you and your lawyer to ask questions to make the other party feel heard. This is to get as much information from them to find out what's agreed, in issue and/or contentious, so you and your lawyer can trade off and reach some sort of agreement. This can involve asking open-ended questions as opposed to direct/specific questions.
- Proposal explanation: Explain the reasons for the proposal you and your lawyer want to put forward and then subsequently give the proposal. It helps directly reference anything the other party mentions that is important to them, and what you concede upon. This will show that you are prepared to negotiate and/or move from your position
- Refrain from criticism: It's important not to criticise the other party's proposal, so as not to antagonise or belittle them, given the adversarial and emotional nature of Family Law. However, it is best practice for you and your lawyer to carefully ask questions about the other party's proposal to gauge their perspective.
- Individualism: It's important for your lawyer to refer to the other party by their name to ensure they're not de-humanising them and creating an impersonal atmosphere. However, it's good practice for your lawyer to ask the other party if they can refer to them by their first name.
In addition to the five points above, there are a few other things your lawyer can do to assist you in representing you in dispute resolution/mediation:
- Externalise the problem: This is important to ensure that prospective parties engaged in dispute resolution/mediation are separated from problems. Doing this enables the prospective parties to instead focus on solutions. Explaining disputes with reference to negative qualities of the other party are unhelpful and will elicit negative feelings from the other party towards you and your lawyer.
- Framing subsequent proposals: Once proposals have been exchanged, the best options in which to raise further proposals are by either modifying your own earlier proposal, or ensuring your lawyer amends the other party's proposal to make it more amenable to yourself.
- Put proposals in the alternative: Essentially, this is where your lawyer would put forward two or more proposals – typically this occurs when there are multiple issues to be resolved. This approach makes you look more flexible and accommodating to the other party.
- Relinquish control: Let the mediator control the process. This allows you and the other party to focus on outcomes, as opposed to confrontation. Mediation avoids lawyers and clients arguing about how to have the conversation and instead permits a focus on substance (not process). Pre-mediation meetings with a mediator allow for the mediator to gauge your thoughts and desired outcomes to enable to facilitate as effective an outcome as possible.
Adopting the above methods and options can hopefully assist you in your preparation for your mediation.
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.