Double mediation for divorce – what does it mean?

A new initiative is being trialled in NSW Family Courts that will have couples that have matters relating to property settlement to undergo a second round of compulsory mediation before their case can be put before the courts.

The initiative has been established by the Law Society and Bar Association with the Family Court and Federal Magistrates Court in an effort to save on the costs of hearing a matter before those courts. It will be tried on 110 couples that are due to have their cases heard later in the year.

What is family law mediation?

Mediation, sometimes known as family dispute resolution, is a confidential meeting or series of meetings that is facilitated by a neutral third party professional, known as a mediator. The mediator’s role is to enable a forum for discussion between the two parties, and assist them in negotiating and reaching an agreement and resolution outside of the legal court system.

Mediation is often a required preliminary step in family law matters to try to settle custody and property disputes before it is brought before a magistrate in a Family Court hearing. For example, a court will not hear an application for a parenting order unless a certificate from an accredited family dispute resolution practitioner is filed with the application. For other cases, including property matters, the court will usually require that the couple attend mediation session at the time of the application.

In this new initiative, couples will be asked to undergo two separate mediation sessions. While not absolutely required, couples will have to explain why they felt that mediation was not appropriate.

Exceptions will be made in cases where violence or fraudulent behaviour is suspected.

Why double mediation?

The aim of the new initiative is to help alleviate some of the stress on the Family Court system and reduce the number of cases that need to be heard in court, where the cost of a hearing can be as much as $7000-$10,000 a day.

According to Law Society president, Justin Dowd, cases not settled in a first mediation session might be resolved at a later stage because the ”emotional energy” surrounding them had diminished. However, critics of mandatory mediation question its effectiveness. They argue that mediation will not be particularly successful if both parties do no enter the mediation with the mutual goal to reach an agreement.

Do you agree with mandatory mediation before a family law matter is dealt with by the court? Do you think additional mediation sessions will be effective in resolving disputes outside of the court system?