Judicial Mediations in Family Law

February 2019

Lisa Wagner & Catherine Piotrowski

Has the other party in your matter proposed Judicial Mediation?

Do you need help in understanding what this entails? If so, read on.

In late 2018, Practice Note 1 was issued relating to judicial mediations for family law matters in the Federal Circuit Court of Australia and it commenced on 1 January 2019.

Essentially, what this entails is a mediation that is facilitated by a judicial officer of the Court rather than a Family Dispute Resolution Practitioner or Mediator. There are numerous reasons why judicial mediation may be considered advantageous to parties trying to resolve their family law dispute and the community in general.

Generally, a typical mediation process would entail the following:

  1. Introductory stage / brief description of the issues (i.e. why are we here today);
  2. Summary by the Mediator (depending on the particular Mediator);
  3. Discussion and exploration of the issues and/or agenda;
  4. Private meetings between the parties and the Mediator;
  5. Discussion of options and alternatives;
  6. Evaluations of proposals; and finally
  7. A decision is reached – whether or not that means settling the matter or proceeding with Court action.

It must be kept in mind that the above process is an approximate outline only. Mediation styles often vary greatly between different Mediators and the circumstances of your family law matter.

Having regard to the unique circumstances of every family law matter, the flexibility of mediations allows for a more individually tailored approach, which is advantageous especially for people after separation who may find themselves self-represented considering that, otherwise, they may experience greater difficulties with the formal and strict processes involved in litigation in the Federal Circuit Court of Australia and/or the Family Court of Australia.

The Practice Note sets out guidelines in relation to matters such as the criterion for suitability for mediation, preparation, attendance and conduct at the mediation and confidentiality. Your family law matter may be suitable for judicial mediation if it meets any of the following criteria:

  1. If both parties are legally represented;
  2. If the docket Judge determines that the matter is suitable for judicial mediation;
  3. Property disputes;
  4. Parenting disputes when there are no serious allegations of risk and/or domestic and family violence;
  5. Appropriate child support matters;
  6. Compliance with orders for a prior unsuccessful private mediation;
  7. A risk that your legal costs and time of the trial will greatly outweigh the subject of the dispute; and
  8. Any other matter that the docket Judge deems to be suitable.

Subject to notifying all other parties, a party who wishes to have a Judge facilitate a Mediation and help finalise their family law matter can make an oral application in the Federal Circuit Court of Australia or apply in writing to the docket Judge in Chambers. You will also be able to set out, either orally or in writing, the basis for why you think the matter is suitable for Judicial Mediation. The other party will then be given a chance to respond as to whether or not he or she will consent to the Judicial Mediation.

It should be kept in mind that the docket Judge for your family law matter cannot be the Judicial Mediator due to the vital need of impartiality. It is for this reason, that in the event that you are ordered to attend judicial mediation, your mediation will be facilitated by another judicial officer of the Court. Following the mediation, if you and the other party were unable to reach an agreement, the Judicial Mediator will have no further involvement in your matter.

Judicial Mediations, like any other mediation, are still subject to the confidentiality provisions in Section 131 of the Evidence Act 1995 (Cth). This will allow both you and your ex-partner to explore the options and alternatives frankly, without the fear of the other party using any information against you later in Court. Additionally, the Judicial Mediator will not, without the express approval of all parties, meet individually with a party and his or her lawyer. Rest assured that whatever is discussed in those private meetings will remain confidential and the Judicial Mediator will not disclose information provided in those sessions to the other party without your consent.

Finally, Judicial Mediation is not intended to be a substitute for private mediation conducted by appropriately qualified mediators, but may be an option for appropriate matters. It is expected that the parties and their lawyers will exhaust all mediation alternatives, prior to judicial mediation. It should be kept in mind that judicial mediations are to only be utilised as a last effort or attempt to resolve the matter before proceeding with the litigation.

Apart from mediation, there are different forms of Alternative Dispute Resolution available to people with family law matters. The Family Law Rules 2004 suggests that people should attempt direct negotiation, arbitration and counselling prior to litigating a family law dispute. This is especially important when considering the preservation of ongoing relationships in parenting matters. At Doolan Wagner Family Lawyers, we are very mindful of preserving our clients’ costs and their post-separation relationships and we will work together with you to reach an appropriate outcome for your family law matter.

If it is the case that your Judicial Mediation was unsuccessful, your matter will then be referred back to the docket Judge, who may then make further directions, and if needed, trial directions.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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