Mediation or Going to Court: Which is the Best Option in Family Law Matters?

By 1 April 2019 Family Law
Mediation
As the old saying goes, love hurts. And that’s what makes certain decisions in family law matters so difficult. One of the toughest decisions a couple has to make as their partnership or marriage breaks down irrevocably is how to end things in a legally appropriate manner. Should you try do so through mediation or just go to court? Here’s what you should know in order to make an informed decision.

An adversarial process

If you’re bitter or angry, taking your partner or spouse to court may seem like the best option. This may also seem like the best choice if you are convinced that you’re entirely right and the other person is entirely wrong. In this case, you may mistakenly believe that the judge will simply take your side and you will get everything you want.

However, you should be aware that decisions made in haste or anger may have unintended consequences. In court there is no guarantee that either one of you will get everything you want, so you may very well end up disappointed if you pursue this option. Furthermore, appealing the court’s ruling is difficult, time-consuming and expensive.

Another point to consider is that going to court is a largely adversarial process, pitting one of you against the other (or your lawyers against each other) and leaving little room for negotiation and constructive dialogue. So even if you don’t resent the other person to begin with, you may end up feeling resentful and hostile towards them in the end.

Having said all of that, there are some situations in which going to court is the only option. This is the case when:

  • you are requesting parenting orders from a family law court;
  • you are using ‘consent orders’ to formalise the arrangement;
  • there is a history of family violence or child abuse;
  • you are responding to an application to court;
  • one of you is unable to engage in meaningful participation for various reasons;
  • one of you has acted against or ignored a court order issued within the past year.

Why opt for mediation?

Flexibility is one of the biggest benefits of mediation. Even the term itself has several definitions. Mediation within the context of family law can be defined as informal discussions facilitated by friends or relatives; or a more structured process facilitated by someone with special training called a mediator.

In either case, mediation has the following goals and characteristics:

  • It is focused on constructive dialogue, healthy conversation and reaching consensus on key issues rather than finger-pointing and casting blame.
  • It is designed to help couples going through separation or divorce avoid costly and unpleasant court battles.
  • It allows you to have significant say in the outcome.
  • It allows and encourages creative solutions to reach consensus.

Mediation can be used to help  you reach consensus on key issues including:

  • The division of property (assets and liabilities);
  • parenting matters;
  • child custody and visitation;
  • spousal support and child support.

What is family dispute resolution?

Family dispute resolution or FDR is a form of mediation used only in certain circumstances. Specifically, it is used to help separating couples who are otherwise unable to agree on parenting matters reach consensus on future parenting plans. In this process, a specially trained FDR practitioner leads the discussions and ensures that the parents remain focused on the children’s needs.

Australian law mandates that separated parents try to reach consensus through FDR   before applying to a family law court for parenting orders. The only exceptions to these rules are those detailed above.

Families in need of FDR services can find them through Family Relationship Centres, Legal Aid Commissions and similar community-based organisations or government agencies. You can learn about the government-funded FDR providers in your area by calling 1800 050 321 or use the Find Local Help search to find one nearby.

Some FDR practitioners also make their service available privately. To find one, simply consult the Family Dispute Resolution Register. You’ll be able to to find information about private provider’s costs there as well.

Options for families in isolated areas include telephone or internet based FDR through the Family Relationship Advice Line or a private FDR practitioner.

You can learn more about FDR here.

The bottom line is that traditional family mediation and FDR are both worthwhile alternatives to court in family law matters. Although FDR is only used when separating families are unable to come to an agreement on parenting plans, it has a lot of the same benefits as traditional family mediation. Both offer flexibility, allow for creative thinking and focus on constructive conversation. Both are facilitated by specially trained professionals and tend to be less expensive than protracted court battles.

To learn more about the use of different types of mediation in family law matters, contact us today.