Having practised in the family law jurisdiction for some 35 years, it seems clear to me that the two most imposing problems that clients face are, firstly, the stress of litigation and secondly, the cost thereof.

Clients should be under no misapprehension that they will be placed under a considerable amount of stress in running litigation. The decision to rely on the court process to try and reach a just and equitable solution so far as property matters are concerned, or in respect of parenting issues, to achieve a solution which is in the best interests of the child, simply cannot be undertaken without a considerable degree of stress being involved. There will be hearings before judges, appointments with family report writers, conferences and the need to ensure time limits are strictly followed.

In addition, there are steps concerning the gathering of evidence for a case, including issuing of subpoenas which can result in documents being produced to the court which could provide substantial embarrassment. Examples in respect of financial matters are documents which disclose evidence of a failure to account for income. This can result in a trial judge referring a matter to the Australian Taxation Office for investigation and possible criminal charges.

In parenting matters, files from Victoria Police, medical specialists and hospitals can be subpoenaed which sometimes produces extremely private information which a client would not want divulged.

Finally, then there is the daunting task of having to give evidence at a final hearing. Many cases have not proceeded to trial, if only because a client is overwhelmed by the prospect of having to sit in a witness box to tell their story only to be rigourously cross-examined by an opposing barrister.

If you are involved in the court process, legal costs will become a very important component as to how far you can press your claim. Even in a family law matter which is considered straight forward, the legal costs that will be incurred in filing an application, attending the numerous court events, preparing for a trial, conducting a trial , and then waiting for a judgement is likely to be somewhere between $30,000.00 and $60,000.00 depending upon the complexity of the matter. More complex or bitterly disputed cases can incur costs well above this range. There are numerous judgements that have been handed down by judges of the courts which deal with family law matters where costs exceed $100,000.00.

The question therefore needs to be asked as to whether or not there is an alternative. Having recently successfully completed National Mediation Accreditation training, I am of the view mediation is a logical, less stressful and comparatively cheaper process to try and bring about a resolution. The particular course that the writer completed was conducted by the Australian Institute of Family Law Arbitrators and Mediators. It is based on a philosophy of the parties not pursuing results based on any particular position but rather based on their interests as they are defined during the mediation process. That is, rather than the parties adopting a position and mediating based on that position, the parties are invited to consider each other’s interests and once explored, proceed to mediate on the basis of those interests.

The process involves the respective parties being in a position to tell each other what their respective position is and what they are hoping to achieve through mediation. With the assistance of the mediator, the parties will jointly reach a consensus as to the major issues that need to be considered in the mediation. Once an agenda is prepared incorporating such issues, each party will then have the opportunity to address these issues. The idea is for each party to become more aware of the other party’s position and their thinking with a view to then being able to reflect on their own position. By doing so, the parties can begin to understand both their own and each other’s behaviours, actions and experiences which is now represented in the conflict. It would therefore hopefully follow that the parties are able to communicate more clearly about their respective situations and look for solutions.

Of course, the above summary of the process is based on a theoretical application as to how the mediation would proceed. Success or failure will always depend upon the attitude adopted by the parties, their respective legal advisers as well as the role played by the mediator.

The distinct advantage of mediation is that it can occur outside of the process of litigation. Whilst the parties, certainly in property matters, will still have the need to ensure that proper disclosure has occurred so that each party is fully aware as to the other party’s financial position, this can take place without the need for issuing legal proceedings.

A mediator, depending upon their experience, will normally charge between $2,750.00 to $5,500.00 to conduct a mediation. If it is proposed to utilise the services of an experienced barrister (such as a Senior Counsel or QC) the mediator’s fees are likely to exceed $5,500.00. That said, as against running a matter from the time of issuing an application in Court through to waiting for a judgement to be delivered by a judge (which will be a duration in excess of 12 months), the costs of the mediation will be far less than that incurred by following the litigation process. It would also follow that there is far less stress in adopting the mediation process..

The final advantage of utilising a mediation to resolve matters is the fact that the parties are more likely to be satisfied with the process and the outcome than compared with litigation. This is primarily due to the fact that the parties are in control of what happens in a mediation which is to be contrasted with litigation when a judge imposes a decision upon the parties.

If anyone reviewing this article is interested to obtain further information regarding a mediation, including the writer’s availability to conduct same he can be contacted on 9783 6133 or by email .

Peter Le Souef
Accredited Family Law Specialist/Nationally Accredited Mediator