In life (and mediation!) the more informed you are, the better position you will be in to make the best decisions.
You should ALWAYS receive legal advice before participating in a joint session mediation. At the end of the day, it is your choice as to whether you do obtain legal advice, but at Focus Mediation, we harp on about it many times throughout the process, because we believe it to be THE SINGLE MOST IMPORTANT ASPECT OF MEDIATION PREPARATION THAT YOU WILL DO!
Why get legal advice prior to mediation?
- It is important for you to have an understanding of the basic legal concepts that are relevant to your situation. This allows you both to have more meaningful discussions about particular issues. For example, if there is a dispute about an inheritance that has been received throughout the relationship, it will be best if you have each received advice regarding how the law handles inheritances.
- Your lawyer will be able to provide you with a picture of the likely outcome if your matter was to proceed to court. This then helps you make decisions during mediation, as you are aware of what is deemed reasonable in the eyes of the law. If you each receive legal advice from an experienced family lawyer, you will both be entering mediation with fairly similar expectations as to the outcome.
- If you have received legal advice, you avoid the scenario of agreeing to something that is not in your interests. Whilst you don’t enter into legal agreements within mediation (ie nothing should be signed without a lawyer), reaching an agreement, and then later realising you shouldn’t have, will waste a lot of time, energy and money.
- You will feel empowered entering the mediation knowing your legal rights and obligations. You will be able to confidently know what you should and shouldn’t agree to.
What advice should you receive from your lawyer before mediation?
- For parenting matters:
- How does the court make its decision regarding future parenting arrangements?
- What is the court likely to order in relation to your parenting matter?
- What is parental responsibility and how can/should decisions regarding the children be made?
- For financial settlement matters:
- How does the court make its decision regarding the split of the property pool? Your lawyer should explain the “4-step process” in detail.
- What is the court likely to order in relation to your property settlement?
- What is spousal maintenance and may it be relevant to your circumstances?
- Your lawyer should always express their advice regarding likely outcome in a ‘range’ approach. That is, what would be your best case and worst case scenarios if the court was deciding? And what would influence the court to decide at the top or bottom end of a range?
- Ask your lawyer what type of agreement(s) you can enter into, and the advantages and disadvantages of each type.
- Given your lawyer will have been working in family law for some time, they are an excellent resource to help brainstorm options that are available and that you can include within your proposals.
- You should know what options are available to you and your ex-partner if the matter doesn’t resolve at mediation. If it proceeds to court, what are the likely timeframes and costs involved?
A few things to keep in mind:
- If you have been invited to mediation and you are considering refusing to attend, you should seek legal advice. If you refuse to attend a s60I certificate may be issued, which enables your ex-partner to file at court (and details your non-attendance). Discussions with your lawyer regarding strategy will help you know how best to proceed.
- Obtaining good legal advice will often be expensive – but will save you money in the long run!
- At Focus Mediation, in preparing you for mediation, we provide you with a customised list of questions and issues that you should cover with your lawyer. Our clients have found this invaluable in streamlining and making the best use of both mediation and legal advice processes.