When a relationship breaks down, people usually see a lawyer to find out about their rights regarding parenting issues and property settlements. If agreement can’t be reached with the other party, the lawyer will often suggest mediation with a government - based mediation service, such as the Family Relationship Centre or Relationships Australia Victoria. There are also private mediators available and, if the matter has gone to court, a Conciliation Conference will be ordered. These services can help couples reach agreements about how much time each party will spend with children, and how to distribute property, including real estate, superannuation, motor vehicles and shares.
These mediation services do good work, and often settlements are reached which can be formalised by the parties’ lawyers. It is up to the mediation service whether or not a couple will be accepted for mediation, and issues such whether there has been family violence will be considered. With some exceptions, you have to at least attempt mediation before you can go to court to make a parenting application.
While these mediation services do good work, and we here at Tonkin Legal Group often recommend clients to use them, they do have a drawback, apart from the court Conciliation Conferences – lawyers are not usually permitted at the mediation sessions. Now, you may think that’s a good thing – keep the lawyers out of it! But most mediators aren’t lawyers. They typically have social science or psychology backgrounds, so they can’t give the parties legal advice as the mediation progresses, can’t tell them whether what is being proposed is the sort of result a court would order.
Which brings us to the topic of this blog, Barrister-led Mediations. This is where the lawyers and their clients agree to hold a mediation where a barrister is the mediator. This can also be ordered by the court if the case has reached that stage. Typically, a barrister-led mediation will occur where other forms of settlement – negotiations by the lawyers, or other mediations have not led to a settlement.
These mediations are usually held in the meeting rooms of the Federal Circuit Court in Melbourne or Dandenong. The barrister is booked for the day, the parties paying equally for their services. Each solicitor sends a “brief” to the barrister, setting out their client’s case and including any relevant documents such as valuations and copies of their client’s court documents, if proceedings have been issued.
Now, this is not an inexpensive exercise, as each party’s solicitor also is also there, to help with the negotiations and to provide any further information the barrister might need. If the case is complex or there is a large asset pool, the solicitors may brief their own barristers to attend the mediation. The barrister-mediator will be one with extensive experience in the field of law, here Family Law. They usually meet separately with each of the parties at the start of the mediation, to explain their role and answer any questions. What follows is a type of shuttle diplomacy, with the barrister-mediator going between the two parties’ rooms and negotiating. Because the mediator is an experienced lawyer, they will let each side know their views about the competing proposals.
Hopefully, at the end of the mediation, agreement has been reached, whether about parenting arrangements, property, or both. The barrister-mediator will draw up Heads of Agreement to be signed by each party, which the solicitors will later turn into court orders or a Binding Financial Agreement.
As I said, a not inexpensive exercise, but barrister-led mediations have a high record of success, and that’s what matters to the parties, and their children.