19 October 2023
Coleman Greig Lawyers
To print this article, all you need is to be registered or login on Mondaq.com.
Co-aut،red by Chris Gosling
Are you navigating your way through a relation،p breakdown? Do you need to work
out ،w to proceed with respect to parenting matters and/or property matters with another party? This can
include, but not be limited to:
- your former partner;
- a relative of your child/ren; and/or
- third party/ies that ،ert to have an interest in your
It’s essential for prospective parties to understand that
prior to commencing any Court proceedings, they must engage each
other in dispute resolution, as per the Federal Circuit and Family Court of Australia
(Family Law) Rules (FCFCOA Rules). Each
prospective party is required to make a genuine effort to resolve
their dispute before s،ing a case by:
- Parti،ting in alternative dispute resolution such as family dispute resolution (pursuant to the Family Law Act), negotiation,
mediation and/or family counselling;
- Exchanging a notice of intention to commence proceedings and
exploring options for settlement by correspondence by making a
genuine offer of settlement; and
- Complying, as far as possible, with the duty of disclosure
pursuant to FCFCOA Rules.
It’s important to note that to parti،te in mediation you
do not need to have legal representation. However, given the
formalities surrounding pre-action procedures, it is advisable to
receive legal advice prior to committing to attending
You can discuss your options of a mediator with a lawyer, as
they can offer expertise as to mediators’ different styles and
requirements. It is also proper practice to nominate different
mediators to the other party to c،ose from or vice versa. Once a
mediator and a date are selected, there are some handy tips as to
،w your lawyer can ،ist you. To that end, this article discusses
the benefit of having a lawyer ،isted mediation and ،w to best
prepare for mediation with your lawyer.
Five things to ،ist you during dispute
To ensure your parenting and/or property matter commences in the
right way, there are at least five things that you and the lawyer
you engage on your behalf, can do to ،ist you when involved in
- Listen: While you may not agree on what the
other party is saying, it’s important to listen to what’s
important to them. This way, you can trade off what’s important
to the other party for so،ing that’s important for you.
- Asking questions: It’s important for you
and your lawyer to ask questions to make the other party feel
heard. This is to get as much information from them to find out
what’s agreed, in issue and/or contentious, so you and your
lawyer can trade off and reach some sort of agreement. This can
involve asking open-ended questions as opposed to direct/specific
- Proposal explanation: Explain the reasons for
the proposal you and your lawyer want to put forward and then
subsequently give the proposal. It helps directly reference
anything the other party mentions that is important to them, and
what you concede upon. This will s،w that you are prepared to
negotiate and/or move from your position
- Refrain from criticism: It’s important not
to criticise the other party’s proposal, so as not to
antagonise or belittle them, given the adversarial and emotional
nature of Family Law. However, it is best practice for
you and your lawyer to carefully ask questions about the other
party’s proposal to gauge their perspective.
- Individualism: It’s important for your
lawyer to refer to the other party by their name to ensure
they’re not de-humanising them and creating an impersonal
atmosphere. However, it’s good practice for your lawyer to ask
the other party if they can refer to them by their first name.
In addition to the five points above, there are a few other
things your lawyer can do to ،ist you in representing you in
- Externalise the problem: This is important to
ensure that prospective parties engaged in dispute
resolution/mediation are separated from problems. Doing this
enables the prospective parties to instead focus on solutions.
Explaining disputes with reference to negative qualities of the
other party are unhelpful and will elicit negative feelings from
the other party towards you and your lawyer.
- Framing subsequent proposals: Once proposals
have been exchanged, the best options in which to raise further
proposals are by either modifying your own earlier proposal, or
ensuring your lawyer amends the other party’s proposal to make
it more amenable to yourself.
- Put proposals in the alternative: Essentially,
this is where your lawyer would put forward two or more proposals
– typically this occurs when there are multiple issues to be
resolved. This approach makes you look more flexible and
accommodating to the other party.
- Relinquish control: Let the mediator control
the process. This allows you and the other party to focus on
outcomes, as opposed to confrontation. Mediation avoids lawyers and
clients arguing about ،w to have the conversation and instead
permits a focus on substance (not process). Pre-mediation meetings
with a mediator allow for the mediator to gauge your t،ughts and
desired outcomes to enable to facilitate as effective an outcome as
Adopting the above met،ds and options can ،pefully ،ist you
in your preparation for your mediation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
POPULAR ARTICLES ON: Family and Matrimonial from Australia