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Mediation 

We are here to help.

For more information about our mediation services, head to www.nextstepmediation.com.au 

What is Mediation?

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Mediation is a structured negotiation process in which an independent person (known as a mediator) assists people to reach an agreement to resolve their dispute. Essentially, if mediation is successful people can resolve their dispute by agreement and avoid Court proceedings, bring Court proceedings to an end or limit the remaining issues to be determined by a Court. Some major advantages to mediation include that parties negotiate their own settlement (rather than a third party like a Judge or Registrar deciding the outcome), parties have an equal say in the process and there is no determination of “fault” but rather, they reach a mutually satisfactory agreement by consent which assists parties to preserve positive relationships.​

 

With mediation you control the outcome rather than a third party (like a judge), who does not actually know you.​Court proceedings are usually slow, stressful and very expensive. Mediation provides people with an opportunity to discuss and finalise their dispute or conflict at a fraction of the cost. ​​​To assist parties with open and honest negotiations and communications at mediation, everything that is said at mediation is confidential and cannot be used later by either party in Court (unless a limited exception applies). If an agreement is reached, signed and dated (by all parties) the agreement may then be relied on as evidence in future Court proceedings (limited exception).​ ​

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The mediation process begins with each party attending a 1.5 hour private intake session with the mediator via Zoom. During intake the mediator will complete a risk assessment and discuss the relevant issues. Following intake we will attend a joint mediation session. The process on the day of mediation is as follows:​

 

1. The Mediators opening statement, the mediator will explain important features of mediation such as confidentiality and inadmissibility;

2. Parties opening statements: you (or your lawyer) will each have an opportunity to summarise the issues you would like to discuss and resolve at mediation. For family law property matters we will prepare a working balance sheet of all relevant assets and liabilities;

3. From your opening statements the mediator will prepare an agenda;

4. We will then move on to exploration and discussion of the agenda items/the issues;

5. After gaining a better understanding of each parties perspective we will move on to option generation and making proposals.

 

The mediator will organise private sessions to discuss and reality test options throughout the day. This will give you time to speak with the mediator in private.

 

6. We will continue to negotiate and discuss the issues and the mediator will document all points of agreement reached.

 

At the conclusion of mediation you can decide whether you sign and date the agreement (if all participants sign and date the agreement the content of the agreement is no longer confidential and is also admissible in Court).

 

​​​If you prefer, or if certain risk issues exist, we can proceed with "shuttle mediation" whereby you have no contact with the other party. With shuttle mediation I will shuttle from each room to facilitate discussions and negotiations and I will ensure there is no contact between parties. You can attend mediation with or without a lawyer or support person.

 

We offer online mediation Australia-wide and in person mediations at the following locations:​

 

Newcastle

Lake Macquarie

The Hunter Valley

Nelson Bay and surrounding suburbs

The Central Coast;

Maitland and surrounding suburbs

Sydney and surrounding suburbs​​

 

We offer online mediation Australia wide. If you are located on the East Coast of New South Wales we can organise an in person mediation close to you.

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FEES

Full day of mediation (up to 7 hours): $2,500 ($1,250 each), this includes the cost of your intake session.  If mediation goes overtime, an hourly fee of $100 will be applicable. 

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Half day of mediation (up to 4 hours): $1,800 ($900 each), this includes the cost of intake. If mediation goes overtime, an hourly fee of $250 will be applicable. 

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We Offer Mediation on Mondays, Wednesdays, Thursdays, Fridays, Saturdays and Sundays.

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 If you decide to proceed with child-inclusive mediation, I will provide you with a fee estimate for a Child Consultant and you can engage their service directly.

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If applicable the parties pay for room/venue hire. Parties share the cost of room hire equally unless otherwise agreed, this cost is separate and additional to the mediator's above states fee. Mediation conducted via Zoom is free.  

Parenting Mediation 

We offer property and parenting mediation online, in person and with or without the assistance of solicitors, at a fraction of the cost of Court proceedings. 

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If your matter involves both parenting and property matters, a full day of mediation is most suitable.

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At mediation, we will discuss and attempt to prepare an agreement as to:

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1) The time the child or children will spend with each parent or caregiver (or family member in applicable cases) including time on special occasions;

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2) Whether both parents should share "parental responsibility" in relation to making major long term decisions jointly or whether one parent should have sole parental responsibility for one or multiple major long term issues. Major Long term issues are defined in the Family Law Act 1975 (Cth) as follows:

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"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long - term nature and includes (but is not limited to) issues of that nature about:

 (a)  the child's education (both current and future); and

 (b)  the child's religious and cultural upbringing; and

 (c)  the child's health; and

 (d)  the child's name; and

 (e)  changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent."

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3) Whether the child or children will be permitted to travel internationally, and if so, at what age and under which conditions. 

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It is important to remember that parenting arrangements should be made on the basis of the best interests of the child or children. Prior to mediation we suggest that you consider the above listed topics and think about the parenting arrangements you believe to be in your child or children's best interests.

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If agreement is reached we can assist you to prepare a Parenting Plan or we can recommend a solicitor who may be able to assist you to prepare legally enforceable consent orders. 

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Generally the things said and offers made at mediation cannot be used in Court and must be kept confidential. An important exception is that if a Parenting Plan is signed and dated by all parties then the Agreement is no longer required to be kept confidential and can be used as evidence in Court. Whether or not you sign and date a Parenting Plan is therefore a very important decision. 

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A Parenting Plan is not legally enforceable by a Court. However, the Court often gives weight to the content of a Parenting Plan when making decisions, as a signed Parenting Plan reflects the parties agreement as to the child's best interests at the time of signing which is usually important evidence. If a party breaches the Parenting Plan and the matter proceeds to Court, the Parenting Plan will form part of the evidence that is reviewed by the Court, Parenting Plans are therefore very important documents. For legally enforceable arrangements you will require consent orders or Court orders as a result of going to Court. 

Parent Holding Child

Child Inclusive Mediation 

Child inclusive mediation may be the preferred option for your family if your child or children are aged 5 or older. The purpose of including children in the pre-mediation process is to assist the parents with making child focused parenting arrangements which may consider each child’s view and their experience of the separation.

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Child inclusive mediation does not involve the children attending mediation and negotiating alongside their parents (that would be very stressful for the child, and highly inappropriate). Instead, each child will meet with a qualified child consultant prior to the mediation. The child consultant will engage the children in discussions and games relating to the family dynamic, any concerns or fears they may have, what makes them happy, their living arrangements and other relevant topics. The child will be made aware of which of their disclosures will later be communicated to the parents at mediation. 

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The child consultant will be present at the first part of the mediation, to discuss the children’s views and experience of separation, which may assist parents to commence child focused negotiations. 

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Why Choose Child Inclusive Mediation?

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It is common for children to tell each parent what they belive each parent wants to hear (telling each parent different things), to keep the peace. Sometimes the first time a child has the opportunity to speak with an independent person is when they speak with the child consultant. The child consultant is skilled at asking questions and communicating with the child to ascertain helpful information to assist the child focused discussions at mediation.

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If your family law matter proceeds to Court (or is already in Court) prior to an interim hearing the Court is likely to engage a Court Child expert (psychologist or social worker) to meet with each child and parent and prepare a report with recommendations as to interim orders they believe to be in the child or children's best interests. If the matter proceeds to final hearing it is likely that a family report will be ordered to be prepared. The purpose of the family report is for a qualified Family Consultant (or Single Expert Witness) to provide their professional opinion as to the final orders they consider to be in the child or children’s best interests based on the evidence filed by each party, the parties disclosures, the children’s views (if age appropriate) and their observations of each party with each child. The family report prior to final hearing is more comprehensive and detailed compared to the report prior to an interim hearing.

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The judge will take the content of the each expert report and the expert's evidence into consideration when determining the interim and final parenting orders, the expert's recommendations in the report are not binding on the Court, but they can be very persuasive if well founded. If you are not legally aided, the cost of a Court ordered private family report may be in the vicinity of $10,000 to $25,000, it is usual for parties to share this cost equally. This cost is additional to each party's own solicitor legal fees.

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The things children say to independent Family Consultants/Experts regarding their preferred living arrangements, their fears, concerns and desires can be surprising and sometimes upsetting to parents. By the time a Court ordered family report is prepared and issued, parties have accrued enormous legal fees which could have been avoided had they resolved the matter at child inclusive mediation sooner (and preferably before Court proceedings are commenced).

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The cost of preparing an application to Court and proceeding all the way to a final hearing may cost each party $50,000 to $110,000 depending on the complexity of matter (often costs are higher than this - speak with a lawyer regarding legal costs). It is common for matters in Court to take years to reach a final hearing. 

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There is undoubtedly a significant financial, time, and emotional benefit to resolving your matter as early as possible without proceeding to Court. 

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We offer child inclusive mediation to assist families with understanding and considering the child or children’s view at the earliest possible opportunity - at a fraction of the cost compared to Court proceedings and a Court ordered family report.

The child inclusive mediation process follows a similar structure to the Court based Child Impact Report process, without the exorbitant Court costs.

home garage

Property/Financial

Family law property matters usually involve agreeing to a percentage split of the net property pool. For this reason we commence property law mediation by identifying the asset pool (all assets and liabilities held solely and jointly by each party) and the values of such (including superannuation). We also consider any relevant financial resources.

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After settling the balance sheet of assets, liabilities and financial resources to the best of our ability, the process of negotiations regarding the items on the balance sheet (who gets what and when) begins. If settlement is reached and you both sign and date an agreement to form a Heads of Agreement, the Heads of Agreement is no longer required to be kept confidential and it is admissible in Court as evidence. Heads of Agreement are therefore very important documents, however they are not legally enforceable and they do not formally resolve your property or financial (eg maintenance) arrangements.

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To create a legally enforceable and formal property agreement, you may engage a lawyer to assist with the preparation of consent orders or a binding financial agreement. ​You can also prepare an application for consent orders without the assistance of a lawyer, however as your mediator I cannot assist with the preparation of consent orders or a binding financial agreement. 

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How Does the Court Decide "Who Gets What?"

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The Federal Circuit and Family Court of Australia has jurisdiction to determine family law matters for married or divorced individuals or separated de facto couples. 

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The Court must first decide whether it is fair to alter the couples existing property interests at all. If so, the following 4 stage process will be applied:

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  1. Identify the property pool: this involves listing and valuing all solely and jointly owned assets (including superannuation), liabilities and financial resources. 
     

  2. Consider each parties contributions: This includes considering each party's initial contributions (what they entered the relationship with), their financial and their non-financial contributions during the relationship and post separation. Examples of non-financial contributions include contributions as home maker, as parent and might include time and effort put into renovations. It is important to note that the Court will consider the property pool as at the current date (not the date of separation), which is a common misconception. Both parties are required to provide full and frank financial disclosure as to their current financial circumstances which includes assets and liabilities accrued post separation. For example, say "party A" received an inheritance post separation - this would need to be disclosed. The Court will be interested in whether either party received any financial windfalls (eg inheritances or lottery wins) during the relationship or post separation, and how the funds were spent. The duration of the relationship and whether there is a child or children of the relationship are key considerations of the Court when determining property matters. The Court will provide a percentage assessment of contributions at this stage. For example purposes only lets say the Court decides the husband's contributions were 60% compared to the wife's contributions at 40%. 
     

  3. Next, the Court will look to the future and consider the parties current and future needs and circumstances: Should one party receive more than the other due to their circumstances and their "future needs"? Relevant future needs factors include each party's health (is there anything that may impact their ability to work and earn a living), who will have primary care of the children, each party's earning capacity and income, the age of each party, whether a party is paying child support, whether a party has financial resources (for example they may be about to receive an inheritance or have an interest in a trust), the housing needs of children of the relationship, the impact of the duration of the relationship on a person's earning capacity, and sometimes the financial circumstances relating to cohabitation with a new partner will be relevant. The Court may make an adjustment at this stage in response to current and future needs. For example purposes only, say the Court assessed the wife's current and future needs at 5%, then the overall percentage outcome would go from 60% to the husband 40% to the wife (contributions) to 55% to the husband and 45% to the wife overall, after future needs are taken into account. The percentage assessment and outcome will vary depending on the unique facts and circumstances of the each case. There is no presumption or rule that there will be a 50/50 split, which is a common misconception.
     

  4. The Forth step requires the Court to consider whether the proposed split is "just and equitable": Is the proposal fair?, will the orders work? and will both parties be okay?
     

We suggest that you obtain legal advice prior to attending mediation. Your lawyer should be able to give you advice on a percentage "range" of what you may receive if the matter was decided in Court. You can attend mediation with or without a lawyer. The benefit of obtaining legal advice prior to mediation is so you can make legally informed and reasonable offers of settlement and so you know if offers made on the day are within the range of a "fair" outcome pursuant to your legal advice. As your mediator, I cannot provide advice in relation to a "just and equitable" outcome.

Preparation

Prior to attending mediation for property matters you should exchange financial disclosure documents and information with your ex-partner. As part of the mediation process we must identify all assets and liabilities and so you should have evidence of the value of all assets and liabilities. You should:

  • Obtain copies of your last superannuation statement and obtain evidence of your current superannuation balance;

  • Complete Redbook e-valuations for all motor vehicles via the following link: https://www.redbook.com.au/;

  • Obtain copies of bank account statements for an agreed period of time (for example from the date of separation to the current date);

  • For real estate, obtain 2 to 3 real estate appraisals or valuations, or liaise with your ex-partner and agree to a value;

  • Obtain copies of your last 3 x tax returns and notices of assessment;

  • Obtain copies of your last three pay slips or equivalent;

  • Obtain evidence of any assets worth over $2,000 that you or your ex have purchased since separation;

  • Obtain evidence of any assets you or your ex has sold within the 12 months prior to separation and any assets that have been sold or disposed of post separation;

  • For businesses: speak with an accountant or business valuer to obtain a valuation;

  • If you received any lump sum payments during the relationship or post separation, obtain evidence of how much you received, when it was received and how the money was spent;

  • Let your lawyer know if you expect to receive an inheritance soon, they can advise you as to whether it is "sufficiently proximate" (Moritzen & Moritzen) and should be disclosed/considered;

  • If you expect to receive a lump sum payment in the future (other than disclosed income) obtain evidence of how much you expect to receive and when (this is relevant to current and future needs considerations)

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For more information on your duty to provide full and frank disclosure please review the Resources section below. 

Resources

Family law matters are conducted within the Federal Circuit and Family Court of Australia ("FCFCOA"). The FCFCOA website has a lot of helpful and informative information about the Court process and pre-Court action procedures (what you must do before going to Court).  Some relevant information can be accessed via the following links:

 

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Email: katherine@aerislegal.com.au
Ph: 0449 025 489
Liability Limited by a Scheme approved under the Professional Standards Legislation

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