Attempting dispute resolution such as mediation is compulsory in both parenting and property matters before you are able to file an application within the family court system. It may also be that you don’t plan on litigating and would simply like to utilise the process of mediation to resolve your family law conflict. Whatever the reason for your interest in attending mediation, you may have been wondering whether or not you need to bring a family lawyer along to the sessions, or indeed involve one at all in the process. Let’s take a look at the question of whether you need a family lawyer for mediation.
Should you take your family lawyer along to your mediation sessions? Or should you at least see a family lawyer prior to attending mediation? It may be that you already have engaged a family lawyer and they have discussed your options beyond going to court, including all forms of alternative dispute resolution. In that case you will probably already be aware of the huge benefits of utilising mediation to resolve your family law matter.
Mediation presents a golden opportunity to resolve your dispute outside of court, with the potential for great savings on costs, in both emotional and financial terms. However, it’s important to bear in mind that mediation is not a substitute for legal advice. In mediation sessions, your mediator will facilitate negotiations but is unable to advise on the merits of any proposals, nor give any practical suggestions for resolution. Those functions are the domain of the family lawyer, so it makes a lot of sense to have your family lawyer on hand during mediation to fulfil those duties and help progress the mediation in a favourable way for you.
Advantages of having your lawyer present
You may attend mediation with or without a family lawyer. So, what are the advantages in taking your family lawyer along to the sessions?
- Helping you work out what you want to achieve
Firstly, your family lawyer will help you identify your needs, delving deep to work out what the real issues are in the dispute, beyond what you may be able to articulate. They can help you with agenda setting (that is, narrowing down and identifying the key issues to discuss and ambit of the mediation).
- On the spot legal advice
Possibly the biggest advantage that you will get from bringing your family lawyer to mediation is that you will be able to access legal advice on the spot, as you need it. Family lawyers are specialists at the family law system and at applying the Family Law Act 1975, so they will ensure you negotiate within the boundaries of your rights and obligations. Being skilled negotiators who are engaged to act in your best interests, your family lawyer can help you negotiate informed agreements. You’ll receive accurate legal advice on asset distribution or parenting issues or both. Your lawyer will also be able to assist you with providing and obtaining disclosure – which is essential for mediation to proceed.
- Creative solutions
Lawyers are excellent problem solvers, and a lawyer experienced with mediation is often very creative in coming up with interest-based settlement solutions.
They can also help you to understand the other party’s underlying interests and any weaknesses in their position, which is very useful in negotiations.
- Guidance and support
During mediation parties will have to be flexible and prepared to change their position, and it can help to have a lawyer to steer you in this regard. You’ll also need to understand about the need to compromise if you want to avoid court and risking a win/lose outcome.
- Reducing risk
Aside from helping you to be realistic and guiding your expectations, your family lawyer will also alert you if you are considering an untenable option. Apart from weighing up the merits of various proposals, your family lawyer will intervene to protect you from coercion or disadvantage, including foreseeing any problems that can arise with carrying out the terms of an agreement.
- Drafting agreements
If an agreement is reached in mediation, your family lawyer can draft legally binding orders on the day, ensuring the agreement covers all the issues raised.
(If lawyers are not going to be attending the mediation, this means agreements will be drafted as informal working agreements which will still be typically referred to a lawyer to check and finalise. Sometimes, agreements can include provisions that state the agreement is being entered into subject to each party seeking independent legal advice.)
- Assessing if mediation is appropriate
Lawyers can also help determine when mediation is not going to be appropriate. For example, they can help assess power imbalances that may exist. They can also advise you when litigation may be necessary to ensure your best interests, if your best interests are not going to be served by the mediation outcome.
Even if you do not wish to take your family lawyer to mediation sessions, they are still an invaluable resource for before you attend mediation. Your family lawyer can explain the process and costs (including the mediator’s fees and billing practices), help you prepare for the sessions, outline your best and worst case scenarios, and help you understand the need for compromise.
You’ll be entering the sessions prepped with insights into your rights and obligations how best to resolve the issues, and importantly how to avoid making any mistakes in negotiating.
Further, where necessary your family lawyer can refer you to a mediator who is specialised in the issues important to your dispute, particularly if the matter is complex and highly specific knowledge is required.
We therefore highly recommend you consult with an experienced family lawyer from the earliest stages of your mediation journey.
Concerns over bringing lawyers to mediation
We think it’s important to address the concerns that sometimes exist about the idea of bringing your family lawyer to mediation. There’s sometimes the idea that lawyers are trained to fight for their party, in opposition to an adversary, with each party seeking to win. As such, it can seem hard to reconcile that mindset with the non-adversarial mindset of mediation.
However, it likely depends a great deal on your choice of family lawyer. Some lawyers definitely regard themselves as a fighter and practitioners have described some parties likening their lawyer to their “gladiator” or “pitbull”. This is absolutely not the kind of mindset you want in a family lawyer who will be helping you with a mediation.
By contrast, what you need is a lawyer trained in interest-based negotiation, who has a co-operative mindset (we specialise in the dispute resolution process of collaborative family law, so we more than fit that bill.)
Sometimes, people are cynical that lawyers would not wish to reduce their own fees by steering clients away from lucrative, lengthy court proceedings. Again, this is probably a personality issue more than anything. It’s inevitable that some lawyers will only be concerned with billable hours. But many others genuinely wish to see you walk away with the best outcome you possibly can in your family law matter.
Ultimately, what you really want to avoid is hiring a family lawyer who views mediation as merely an annoying stepping stone on the path to court, something to be complied with and got “out of the way” before litigating.
So, shop around, read reviews and take advantage of cost-free, obligation-free, first conferences (such as we offer to new clients) to ensure you select a family lawyer who has a creative, co-operative mindset and a strong understanding of the benefits of attending mediation.
If you would like to book a free first conference to discuss your family law dispute resolution options, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.