I was lucky that, when I went through my own divorce, I was in the midst of completing my law degree and had access to resources that gave me a vague idea of what I needed to do to settle my matter. I mean, I was wrong, and an initial consult with a family lawyer led me down the right track (phew), but I was still in a better position than many.
I think the best comparison, for me, is from when my son was born. The number of a times a midwife would ask ‘have you done X’ and I’m like ‘do I need to do X?’ because when you haven’t been through something before (or haven’t spent half your lifetime studying it), you literally have no reason to know the answer to the question. You don’t know what you don’t know.
If you want a fun rhyme to remember them by – mediate, negotiate, litigate. Not really a fun rhyme at all, but if you are anything like me it will help you remember better. If you are heading in to see a family lawyer, coming in armed with some idea of what they are about to talk about will make it easier for both of you. I liken it to the first time I got in a cockpit and the instructor directed me to ‘set the rudder’ or… something. You could lock right rudder for take-off because the plane would pull to the right otherwise. I wish I’d known what that meant and didn’t have to look (and be) so dumbfounded.
So, what I hope to do, here, is give you a brief but useful overview of the three common ways you are going to deal with your separation. (I say ‘common’ because there are other ways, but I will get to them later.)
No secret this one is my preference first and foremost.
And just to clarify, I am a Family Dispute Resolution Practitioner, which is basically a mediator who specialises in family disputes and is accredited to provide a Section 60I Certificate which is required in family law to apply to the court. For ease, though, I will refer to mediators and mediation. You’re welcome.
My experience, so far, is the many (maybe even most) family disputes are suitable for mediation.
“Hell no!” you say.
“We are so far apart!”
“I will probably bite his head off!” (figuratively, of course… I hope…)
“We are both way too emotional to be in the same room.”
Oh, the responses I have for you. *cue evil laugh* Honestly, though, most of the objections I hear from people can be overcome. Some may take time, others might need some intervention (like therapeutic counselling), but irrespective of what needs to happen to make the family suitable for mediation – it was probably going to have to happen anyway.
For a person to agree to a resolution, whether by mediation or negotiation (the next option), they need to be in the headspace to make that decision. The only forum that can achieve a resolution for a family without the parties being ready and able to agree is by litigation. That’s court. That’s when a judge, who doesn’t know your family from a bar of soap, makes the best decision they can on the evidence to fix your families issues. More on that later.
What I am getting at is that, regardless of what needs to happen to get you to a place where you can work with your former partner to resolve your disputes, you would need to do this whether you were investing in a one day mediation, or hours upon hours of legal fees to negotiate and potentially end up in the same (or worse) position. Again, more on that later.
Mediation can be used to resolve any of your family dispute issues. In parenting matters, the court will expect, nay, require, that you have attempted to mediate your issues before you even so much as think of asking them to look at it.
In very brief summary, mediation will involve:
- Inviting the other party to mediate.
- Completing intake interviews with each party, where the mediator gets an idea of what your family’s issues are and what you need to resolve.
- Spending anywhere from a few hours to a day or two with the mediator, the parties, and maybe their lawyers (if they like) in a mediation session.
- If you reach agreements, you can then take these back to your lawyers and get them to draft them up into consent orders or binding financial agreements (yes, you can mediate financial matters too!) or if you are dealing with parenting matters, you may even finalise the agreement on the day informally or by parenting agreement.
I will explain the types of agreements in another blog, on another day.
As I said, mediation can be used for all family law disputes, parenting or financial, and your mediator will be able to guide you on how much time you will need to dedicate to attempt to resolve them.
Mediation is far less formal, and ultimately puts the power in your hands. When you are feeling broken and out of control, any opportunity to reclaim your power of decision making is one worth taking.
Oh, the other thing.
Mediation can look different for different parties. Sometimes, parties (the people involved), don’t want to deal with each other face to face. Maybe there is a power imbalance, or a history of domestic violence. Maybe they are just extremely conflictual and it’s more productive to keep them and their fiery personalities separate. You know who you are, strong, fiery people! We can accommodate this by keeping you in separate rooms, even online (Zoom has rooms!).
As far as ‘cons’ go? There is a risk that you haven’t had legal advice and you agree to something that isn’t in your best interests and/or your children’s best interests and/or wouldn’t be sealed (approved) by a court. I will always recommend you seek legal advice before mediation.
Aside from that, the seemingly large expense of a one day mediation pales in comparison to legal fees you will accrue through any other forum of negotiation. Negotiations and court will also take longer than a day, so mediation is quicker too. Woohoo for mediation!
This was the most common method I dealt with in traditional legal practice.
This involved me sending letters, and receiving letters, and then sending more letters. And these letters often said the same thing, with some slight variation, each time. Each week, I would send out a bill to my client, and they would call and complain that they hadn’t achieved anything and it was costing a lot. Then I would explain the work I had done, reiterate my advice to them, and they would go and pay the bill. They knew I was doing a lot. They knew whether they were or were not listening to my advice. They knew that their former partner disagreed with what they wanted and was sending lots of letters. My paper files were epic. It was frustrating. And I wasn’t even the client.
I negotiated with my ex-husband. Sort of. He had a lawyer and I didn’t. I couldn’t afford one and he could. So his lawyer was advising him of his rights and I was… guessing? Because I was a lowly law student with no experience or study in family law.
So they sent me letters, and I sent them beautifully articulated replies with no technical underpinning. They bullied me into doing things that, in hindsight, and now as a family lawyer, I know were unethical, like ‘removing my items from the home within X number of days’.
I made an offer. They countered it with a VERY low one. I just responded with something in between, which, even at the time I knew was below what I should have sought, and they agreed. Of course. He won. He paid me my measly sum. He kept almost all of our belongings. But I was free of a negotiation process that was stressing me emotionally and mentally, and this was without the burden of having legal fees to pay on top of it.
For the time I worked in firms, I took on matters, negotiated them for the time I worked there, and handed them over to my replacement. They didn’t resolve quickly. They involved two parties, in two opposing positions, with two lawyers, who were under the instruction of those two parties. So they fought their battles. And the two sides remained very far apart. Kind of like two armies shooting arrows at one another, but they are too far away to hit anything, but too stubborn/afraid/stuck to move any closer.
I have been there. I have also seen it. I have been on both sides. And neither are winners. Even if one looks like a winner. And I promise, both of you will walk away feeling like the other won. I am sure my ex-husband felt like that too!
Negotiation takes time. Money. And the stress. Oh, the stress. In my mind, negotiation is ‘old law’ and I am in the process of learning the newer (and better) was of doing things – I will share this with you later. It doesn’t mean it isn’t necessary for some people. Again, it happens.
The one positive I can take is that you will have both received plenty of legal advice along the way. So that’s cool.
If you could see the look on my face, you would understand my feelings around this option immediately.
This is ‘going to court’.
This is the last resort. Even your lawyer will tell you that. Unless they love court. Then… maybe decide whether they are the right lawyer for you. Controversial statement, but family law is about people, and people have emotions and lives and other things going on, and court shouldn’t be the forum of resolution but for a small percentage of cases involving complex or serious issues that need oversight from a highly skilled and experienced judge, guided by similarly skilled and experienced lawyers and barristers.
You can have a ‘shark’ or a ‘bulldog’ for a lawyer, who can fight your fight, outside court. If you are here, reading this, you are exploring the option of mediation. Which means you are trying to do the right thing for everyone’s emotional and mental wellbeing. It doesn’t mean you can’t have that tough fighter in your corner, but just be mindful they aren’t creating more issues than they are helping you to deal with.
In the event you have tried everything else, or maybe your matter is that urgent, complex or serious (you may need to urgently stop a parent removing your children from Australia, maybe you have very complex financial structures or issues, or perhaps parenting arrangements involve allegations of child abuse), then a good lawyer will know that litigation is needed. It is necessary.
So litigation, or court, has its place. Urgent matters. Complex matters. Serious matters. And a good lawyer will know when this is needed.
It will cost you. Time. Money. Wellbeing. No one ever walked out of court saying ‘that was super fun and I am really happy I spent the last three years thinking about, dedicating time to and paying for that, hooray!’
If you need to go there, I am sorry. You will make it through, there is light at the end of the tunnel, and the courts are presently working to improve the system. It is ongoing, though, and will take time. In the meantime, if you have any ability to avoid entering this system, I recommend you take it.
If you haven’t already gathered, I strongly recommend mediating. Strongly. If nothing else, if it doesn’t resolve your issues, it will certainly give you a better idea of what the other person wants, and why. The ‘why’ is the missing piece of the puzzle if you negotiate or litigate. Mediate to get that puzzle piece, as it is very important. Vital, in my opinion.
I understand as well as anyone that some matters just aren’t suitable for mediation. It happens.
For many, though, it can be the best, fastest, and cheapest option to achieve a resolution to their family dispute.