FAQs & RESOURCES - Richard Mahler

FAQ’s

What’s mediation?

Mediation is a process whereby parties in dispute come together with a neutral third-party mediator in an attempt to resolve the dispute without necessitating litigation through Court. This places the decision-making power with the participants rather than a judge who knows very little about a family.

I specialise in conducting family law mediations. This process is also known as a Family Dispute Resolution Conference or Conciliation Conference (if conducted by the Family Law Courts), and is generally referred to as a form of Alternative Dispute Resolution (ADR).

The potential issues addressed at Mediation include (but are not limited to) the following:

arrangements for the care of children (such as living arrangements and time spent with parents or other significant caregivers such as grandparents)
relocation of children
school enrolment
children’s names
medical issues relating to children
passports and overseas travel with children
interim financial matters
spousal maintenance
property settlement
child support
implementation of Court orders
contravention / breaches of Court orders
changes to Court orders.

Mediation is future-focussed, rather than the litigation Court process which can take years to finalise, causes emotional and mental harm to families and generally costs each party tens of thousands of dollars.

Mediation is confidential and done on a “without prejudice” basis. This means that nothing said at a mediation can be used in subsequent Court proceedings. There are some limits to this confidentiality required by law, such as when a child is at imminent risk of harm or a person is likely to harm themselves or someone else.

What’s a Section 60I Certificate?

A section 60I Certificate allows you to go to Court regarding children’s matters. As a registered Family Dispute Resolution Practitioner, I can issue one of these if I’ve invited a party to mediation and they’ve refused my invitation.

Is mediation compulsory?

Well that depends on your particular circumstances.

Children’s matters must be mediated before going to Court unless there are exceptional circumstances. Generally, this relates to domestic violence or urgency such as stopping someone from travelling overseas with children. You should obtain legal advice to determine whether you can apply to the Court without attempting mediation.

While attempting mediation in the face of any family law dispute is almost always a good idea, financial matters such as property settlement and spousal maintenance don’t require mediation before going to Court. Also, child support matters must be formally reviewed by the Child Support Agency before going to Court.

Do I need a lawyer to attend mediation with me?

No. However, given that the outcome of a mediation can dramatically affect a person’s rights and obligations under family law, my strong preference is that all parties to my mediations either have a lawyer present at the mediation, or at the very least obtain independent legal advice prior to attending the mediation.

Can I bring a support person with me?

Yes. You can bring a support person to sit with you in a separate room. However, it’s highly unlikely that they’ll sit with you in the same room as the other party.

Do I have to be in the same room as the other person?

No. Generally my preference is to conduct a shuttle mediation where the parties are in separate rooms and I shuttle between them. It can be all-too-easy for a party to be triggered by the other party with even the slightest gesture such as a groan or eye-roll. However, if there are good reasons for parties to be in the same room in order to effectively navigate a particular issue, then this can also be facilitated.

I can also offer Zoom or telephone mediations where there is considerable distance between the parties.

What’s a Child-Inclusive Mediation?

As a family therapist, I offer child-inclusive mediation (CIM) services, drawing upon my dual qualifications and experience in both law and psychology. I empower school-age children with a safe space to voice their lived experience. This can involve play and art therapy. I screen caregivers to safeguard against them using the children’s lived experience as a weapon against each other. I assess children for third party influence or coaching, attachment issues and signs of trauma. I reassure children that the dispute between their caregivers isn’t their fault, and encourage them to express their needs, concerns and overall wishes. I discourage children from attempting to make decisions about their relationships with significant caregivers, such as who they live with and how much time they spend with them. To address the potential conflict of interest of me acting as both a mediator and family therapist, I only disclose children’s wishes when they expressly ask me to do so. This process is non-reportable and cannot be used in Court proceedings.

My CIM services are provided in person. I generally meet with children outside of law offices at a nearby park or shopping centre, to encourage them to relax and speak their truth. Caregivers are able to observe this process from a safe distance but not within earshot, to afford children the benefit of both safety and privacy.

What’s the actual mediation process?

I begin the mediation process by conducting an intake with each party and their lawyer on the day of the mediation. This gives me an opportunity to understand how each party sees the dispute, and what they’d like to achieve. I then establish an agenda with the input of both parties and their lawyers.

My preference is to deal with the hardest issues first. Otherwise they’re just lurking in the background as the proverbial ‘pink elephant’ in the room. I will at times draw upon my many years of experience in family law to help reality test parties as to what might be a likely outcome in Court. I also spend a great deal of time thinking outside the box and brainstorming ways to reach a resolution in creative ways that allow all parties to move forward.

I never pressure parties to reach a resolution. However, I may remind them of the emotional, mental and financial costs associated with not resolving matters in a timely fashion.

I generally conduct mediations at a law firms, as they have excellent facilities in terms of separate rooms and support staff to prepare documents.

Whilst some mediations only take a few hours, generally they take a full day.

What happens if agreement is reached at mediation?

There are several options in the common occurrence of agreement being reached between the parties at my mediations.

It may be that nothing needs to be reduced to writing, and a verbal agreement will be sufficient. However, this is rarely the case.

For children’s matters, a written agreement may be reached called a Parenting Plan. While this is not strictly legally enforceable, the Court will have regard to it in making any future Orders. Generally, the parties will sign Consent Orders which are then legally enforceable.

For financial matters, a Heads of Agreement is usually signed which can then be converted into either Consent Orders or a Binding Financial Agreement by the parties’ lawyers.

Ultimately, your lawyer will guide you as to the best approach to take once agreement has been reached.

How do I best prepare for mediation?

The first thing you should do is ensure that you’re emotionally and mentally prepared for the mediation. Discuss it at length with a trusted family member, friend or professional such as a therapist. Be prepared to make concessions and compromises, as otherwise the mediation is almost guaranteed to fail.

If you’re wanting to discuss schooling, it helps to come prepared with information about the relevant school/s (such as fees, curriculum and extra-curricular activities) to provide the other party with. Similarly, if you’re wanting to discuss medical issues such as orthodontics relevant information such as fees and timeframes will be helpful.

For financial matters, it’s essential that all parties make full and frank disclosure of all significant assets (including superannuation), liabilities and financial resources (such as expected inheritances or compensation payouts) in their possession or control. For real estate, several real estate appraisals or a formal valuation will likely be necessary.