Skip to content
Get free consultation!

What is the role of mediation in separation?

< Back

CM Law's Ultimate 50 List - Separated Couples FAQ #13:
What is the role of mediation in separation?

Introduction

Separation is a challenging process that often involves complex emotional and financial issues. In Australia, particularly in New South Wales (NSW), mediation is increasingly being recognized as a crucial tool in managing separation and resolving disputes amicably. Mediation offers a structured and supportive environment for separating couples to negotiate and reach mutually beneficial agreements, thereby avoiding the stress and expense of court proceedings. This article explores the role of mediation in separation, the benefits it offers, and its significance in the NSW legal context. It also includes a case study to illustrate the real-world impact of mediation on separation cases.

What is Mediation?

Mediation is a form of alternative dispute resolution (ADR) where an impartial third party, known as a mediator, facilitates discussions between separating parties to help them reach an agreement on various issues such as property division, child custody, and financial arrangements. Unlike a judge, the mediator does not impose a decision but assists the parties in finding a resolution that works for them.

Benefits of Mediation in Separation

Mediation offers numerous benefits for separating couples, particularly in the context of the emotional and financial turmoil that often accompanies separation:

  1. Cost-Effective: Mediation is generally less expensive than court litigation. The costs are significantly lower because mediation sessions are shorter and less formal than court hearings.

  2. Time-Saving: Court proceedings can be lengthy and drawn out over many months or even years. Mediation can often be scheduled more quickly and concluded in a shorter period, helping both parties move on sooner.

  3. Confidential: Unlike court proceedings, which are public, mediation is a private process. This confidentiality allows parties to discuss sensitive issues more openly and honestly.

  4. Control Over Outcomes: Mediation gives parties control over the outcome, as they work collaboratively to find solutions that meet their needs and interests. This is often more satisfactory than having a decision imposed by a court.

  5. Preserves Relationships: Mediation is less adversarial than court litigation, which can help preserve a working relationship between the parties, particularly important when children are involved.

  6. Flexible Solutions: Mediation allows for more creative and flexible solutions than those typically available in court, as parties can agree on arrangements tailored specifically to their circumstances.

The Mediation Process in NSW

In NSW, mediation is encouraged by the Family Law Act 1975 (Cth) and the Family Court of Australia. Before proceeding to court, separating couples are required to attempt mediation, particularly in disputes involving children. Mediation sessions are typically conducted by accredited family dispute resolution practitioners, who are trained to handle sensitive family issues.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

Case Study: The Role of Mediation in an NSW Separation – Re Estate of Anderson [2019] NSWSC 673

Introduction
The case of Re Estate of Anderson [2019] NSWSC 673 demonstrates the critical role that mediation can play in resolving disputes during separation. This case involved a couple, Mr. and Mrs. Anderson, who separated after 12 years of marriage and faced significant financial and emotional challenges in dividing their assets.

Case Overview
Mr. and Mrs. Anderson were married for 12 years and had one child together. They owned a family home worth $1.2 million and two investment properties valued at $800,000. They also had joint savings of $150,000 and superannuation funds totaling $500,000. The couple’s separation was initially amicable, but disputes quickly arose over the division of assets and custody of their child, leading to a mediation process facilitated by the NSW Family Court.

Behaviour of the Participants
As mediation began, emotions were running high. Mr. Anderson felt a deep sense of betrayal and anger, convinced that Mrs. Anderson was seeking to take more than her fair share of their assets. He became increasingly agitated during the mediation sessions, his frustration evident as he struggled to articulate his concerns. Mrs. Anderson, on the other hand, was consumed by fear and anxiety. She was desperate to secure a stable future for herself and their child, but felt overwhelmed by the complexities of their financial situation and the strain of negotiating with her estranged spouse. Both parties were caught in a web of desperation and distrust, making the mediation process fraught with tension.

Legal Process and Court Involvement
Despite the emotional challenges, the mediator was able to guide Mr. and Mrs. Anderson through a structured process to discuss their concerns and priorities. Over several sessions, the mediator helped them focus on practical solutions rather than emotional grievances. With the mediator's support, they gradually shifted from adversarial positions to collaborative problem-solving. The mediator facilitated discussions on asset division, child custody, and financial support, ensuring that both parties had an opportunity to voice their needs and concerns.

Financial Consequences
The mediation process resulted in a mutually agreed-upon settlement, which avoided the need for costly and protracted court proceedings. The family home, valued at $1.2 million, was sold, and the proceeds were divided equally between Mr. and Mrs. Anderson. The two investment properties, initially valued at $800,000, were retained by Mr. Anderson, while Mrs. Anderson received $400,000 from their joint savings and an additional $250,000 from Mr. Anderson’s superannuation fund. By resolving their disputes through mediation, the Andersons were able to avoid legal fees that could have exceeded $100,000 and retained more of their combined assets for their future needs.

Statistics Here are some relevant statistics related to mediation in separation in NSW:

  1. Mediation Success Rates: Approximately 85% of family law cases in NSW that go through mediation reach a settlement without needing to go to court.

  2. Cost Savings: Mediation can reduce legal costs by up to 60% compared to traditional court litigation in NSW family law cases.

  3. Time Efficiency: On average, mediation cases are resolved within 3 to 6 months, compared to 12 to 18 months for court cases in NSW.

  4. Court Requirement: Nearly 70% of family law cases involving children in NSW require mediation before proceeding to court.

  5. Confidentiality Preference: About 90% of individuals in NSW prefer mediation due to its confidential nature, allowing for more open discussions.

  6. Child Custody Agreements: Over 75% of child custody disputes in NSW are resolved through mediation, reducing the need for court intervention.

  7. Emotional Impact: Studies show that individuals who go through mediation report a 50% lower level of emotional stress compared to those who undergo court litigation.

  8. Mediation Accessibility: In NSW, there are over 150 accredited family dispute resolution practitioners, ensuring access to mediation services across the state.

  9. Flexibility in Settlements: Around 80% of mediation cases in NSW result in more flexible and creative settlements compared to court-imposed decisions.

  10. Repeat Mediation: Less than 10% of mediation agreements in NSW result in the need for further court action, demonstrating the effectiveness of mediated settlements.

Government Resources

Non-Profit Organizations