Mediation is a process in which disputes can be resolved with the assistance of a neutral and impartial mediator. One of the frequently asked questions is, whether mediation is a voluntary process or not? Separated couples are riddled with confusion when they get information that they “have to” participate in mediation from some sources. Let’s unpack this topic.

• Statistically, most couples that separate in Australia do so amicably and they reach their own agreements without any professional assistance. Naturally, you do not require mediation if both parties are in mutual agreement.

• For the couples in dispute or those that need professional assistance to ensure they are doing the right thing, it is generally for;

  • Property matters or,

  • Parenting matters.

• If you have a property matter, you have direct access to the Family Courts and can initiate proceedings, oftentimes with the assistance of a lawyer. Having said that, it is highly recommended that you attempt mediation at the first instance as there are a lot of benefits to participating in the mediation process as opposed to litigation. More of this will be discussed in our upcoming blog, The Benefits of Mediation.

• For parenting matters, you do not have direct access to the family court and are required to attempt mediation first, unless if you fit within the exceptions to that rule.

  • To show that you have attempted parenting mediation, you require a certificate from an accredited Family Dispute Resolution Practitioner.

  • Without a certificate or if you do not fit into the exceptions, you cannot commence parenting proceedings in the Family Courts.

Having said all this, is mediation a voluntary process?

Despite all the factors listed above, mediation is a voluntary process. How?

• No one is forced to participate in the process against their will.

• All participants have to be willing participants.

• If a client calls us and says they do not wish to participate, we accept their choice and explain the way forward.

• If one party attempts, and the other declines, we are required to issue a certificate to allow the initiating party an avenue into the Family Courts to resolve the matter, if they wish to do so. Whether the party with the certificate pursues the matter in the Family Courts after receiving the certificate or not is up to them.

Keep an eye out for the upcoming blogs, Certificates-Explained and The Benefits of Mediation.