Legally assisted mediation is essentially the same process as conventional mediation only you and your former partner agree to bring your lawyers into the problem solving and agreement-making phase.
The process itself can be quite flexible. Usually, the mediation takes place in one longer session rather than being spread over two or three shorter sessions. Mediation can take place at either your lawyer’s office, the office of your partner’s lawyer or in a meeting room provided by the mediator.
The mediator is in charge of the process and will direct you, your lawyer, your former partner and their lawyer to help move things along. The lawyers are not there to actively participate in the mediation session, but to advise in private sessions. The reason for this is so the parents themselves reach the best outcomes. It is the parents that have to live with what is agreed, not the mediator or the lawyers. In addition, parents know their own circumstances intimately and together with what will and what won’t work.
Commonly the process begins with each party explaining their priorities, needs and goals. The mediator will then assist both parties to set an agenda of issues to reach agreement on.
If the parties reach agreement, it may be possible for the lawyers to draw it up on the spot. Alternatively, for more complex agreements or agreements that will be filed with the Family Court, Federal Circuit Court or local court, the lawyers can take these agreements back to their offices for preparation into consent orders.
Why choose legally assisted mediation?
Legally assisted mediation is most useful in circumstances where there are very complex issues or high conflict. Having your lawyer with you means you can take advice on the spot and discuss matters with their help.
In most cases, mediation is compulsory before engaging in a court forum. Attending mediation with your lawyer means you are able to reach an agreement with the benefit of their guidance or at least narrow the issues in dispute.
Legally assisted mediation is also useful in situations where some aspects of your situation are easy to resolve, whilst others are harder. For example, some families find that financial arrangements are complicated and complex and require a long investigative process, yet arrangements for children can be sorted out relatively quickly or vice versa. Legally assisted mediation allows you to come to an agreement on some issues whilst not compromising on other unresolved issues.
Property mediation is often best to not involve lawyers for the first couple of sessions. The first couple of sessions can be used to ascertain the value of the property pool, this is where the parties list the assets and liabilities and agree on the values attributed to them or otherwise agree on a means in which to obtain values that both parties can and will agree on.
Legal advice is not necessary at this stage unless an impasse exists. It is best to have lawyers present to provide guidance and advice when considering the overall property split, as varying factors are considered when doing so (see Property Mediation).
When is legally assisted mediation beneficial?
- If there are family violence issues that disqualify you and your former partner from traditional mediation;
- Where there is a significant power imbalance between the parties;
- If you do not feel that your former partner is disclosing information honestly;
- If you don’t fully understand your former partner’s financial situation;
- If you feel uncomfortable or insecure communicating with your former partner, even with the assistance of a mediator;
- If your situation is very complex or there are many issues at stake;
- If you intend to have any agreement you make with your former partner made into enforceable court orders;
- If you intend to make agreements on financial matters (as these require independent legal advice in order to be valid);
- If you have already engaged a lawyer and are required to attend mediation before filing your matter with the Court;
- If you have already engaged a lawyer but still wish to attempt mediation in order to avoid the court process, or to narrow the issues in dispute;
- If there is a sense of urgency and a need to make arrangements quickly.