When it comes to family law disputes, many people come to mediation after months of lawyer assisted negotiations or discussions between themselves.
By then, they’re often firmly attached to their legal “rights” and positions. While knowing your rights and understanding the strengths and weaknesses of your case is absolutely essential, mediation requires a different mindset.
Instead of focusing on winning or losing, mediation works best when both parties are willing to move from their starting positions.
A successful mediation isn’t about victory; it’s about compromise. In fact, the hallmark of a good outcome is that both parties leave feeling a little disappointed. A sense of “I could’ve got more.” That’s not failure; that’s balance. It means both of you sacrificed something in order to reach an agreement.
Why Compromise is Worth It
So why agree to something less than your “ideal” outcome? Well in my experience as both a seasoned family lawyer and an Accredited Family Dispute Resolution Practitioner is there are four main reasons:
1. Cost
Litigation is expensive. You might fight over $10,000, but by the end of a drawn-out case, you could spend $100,000 to $150,000 in legal fees if it goes to a full final hearing. Mediation allows you to resolve matters far more affordably.
2. Emotional Wellbeing
The toll of conflict isn’t just financial. Prolonged disputes can deeply affect your mental health and wellbeing.
More importantly, if children are involved, ongoing parental conflict can be profoundly damaging. Research shows extended exposure to conflict can even alter a child’s brain development. No parent wants to look back and realise that legal battles over dollars and cents cost their children peace of mind and stability.
3. Time
Court proceedings are rarely quick. Even after your first court date, which may take 6 to 12 weeks to arrive you’re often simply sent back to further directions, mediations, report preparations or adjournments. It’s common for matters to drag on for 18 months or more. By contrast, a mediated agreement can be drafted into consent orders and finalised within weeks or months depending on the complexity and issues in dispute.
4. You get to decide
What many do not realise is that when you go to court and are involved in litigation. You are paying for a judge to decide what should happy to your family and your finances. In mediation however, you get to maintain control over what happens. When you are involved in litigation, who ‘wins’ will depend on who presents the best evidence on the day(s) of the trial and how the judge assigned to your case assesses that evidence.
The Harsh Reality of Litigation
If mediation fails, litigation often becomes the next step. But here’s the reality:
Over time, costs escalate while assets often depreciate. You are already losing.
Conflict tends to increase, not decrease.
Litigation fatigue sets in, leaving families drained financially and emotionally.
The court process is slow, and the “big day” in front of a judge may be years away.
In many cases, the final court order looks very similar to what could have been achieved in mediation years earlier or sadly worse because now emotionally and financially a toll has been taken.
When Court is Necessary
The court system is crucial for keeping families safe. If there are serious concerns like family violence, abuse, or unacceptable risks to children, the court is the best place to ensure protection and accountability. In those circumstances, litigation is not just appropriate but essential sometimes. This is where having an experienced family lawyer is crucial to understanding your particular unique case and needs.
However, in cases involving modest asset pools such as a home, cars, superannuation, and savings mediation often provides the fastest, least damaging path forward.
Final Thoughts
Mediation isn’t about giving up your rights or “losing.” It’s about making a clear-eyed, practical decision for the sake of your finances, your wellbeing, and most importantly your children. By approaching mediation with the right mindset, you give yourself the best chance of moving forward sooner, lighter, and with less regret.
If you would like to learn more about mediation, this blog post is written by Kristal Naividi of Olive Mediation and you can find out more at http://www.olivemediation.com.au
If you are going through a separation then these are our top 5 tips
Obviously break ups suck that’s why there are so many songs written about them. Eat all the foods. Cry all the tears and drink all the wine in those first few days. Call those besties in your life for support or if you are really struggling then engaging with a counsellor or psychologist is an amazing act of self care.
Update all your passwords and logins. It’s not unusual in a relationship to know your partners logins or to share location services. But changing those things is a great boundary to put in place and will prevent any potential financial issues down the track.
Under the Family Law Act you will have an obligation of disclosure so it’s best to start collating all your financial information including payslips, tax returns, bank statements for the past 12 months, credit card debts etc.
Write down what you brought into your relationship and what you contributed during the relationship. Consider your financial and non financial contributions. (Yes staying at home with those beautiful babies is a contribution to be reflected in your property settlement).
Book in a 1 hour Strategy Session with Coastal Lawyers. Many of our clients book these sessions in before they are going to seperate or once they are newly separated so they can find out their legal rights and responsibilities when it comes to parenting, property and divorce.
In September 2021, the Federal Circuit Court and the Family Court merged to create the FCFCOA.
With that merger brought a stronger focus on pre-action procedures. These are the steps that families should take before they even consider bringing an application in court.
While there are still exemptions if you are the victim of family violence, children are at risk of harm or the matter is urgent. There is a clear pathway towards mediation and resolution outside of court.
At @coastallawyers we embrace every opportunity to keep our clients out of court and we think that the whole process of mediation just makes sense for families. It is inclusive. It is collaborative. It is much more cost effective. The parties remain in control and it is future focussed.
If you have recently separated, then why not book in a 1 hour Strategy Session @coastallawyers for $330 and we can discuss how the pre-action procedures apply to your family.
As of 1 July 2022 we also offer fixed fees for family law matters including legally assisted mediation and consent orders. * * * #centralcoastnsw #gosford #terrigal #wamberal #coast #localbusiness #lawyer #smallbusiness #lawyerlife #mumlife #centralcoast #coasties
Either party to a marriage can file for divorce once the jurisdictional question in section 39[1] and the legislative test in section 48 have been met.
What are the reasons for a divorce in Australia?
Australia has a no-fault divorce concept.
This means that if someone has an affair or one party is at fault for the breakdown of the relationship, this is not relevant to the question of whether a divorce should be granted.
Separation is defined under section 49 of the Act and makes it clear that “parties to a marriage may be held to be separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties”.
The legal test for a divorce application being brought is set out in Section 48 of the Act. Being:
The court determines whether a marriage has irretrievably broken down when the parties separated and lived separately and apart for a continuous period of not less than 12 months[3]?
If the court considers that there is a reasonable likelihood of cohabitation being resumed, then the court will not make the order for divorce[4].
Family Law Time Limits:
You only have 12 months[5] from the date of divorce to finalise your property settlement or maintenance request unless you have the consent of the other party or leave of the court. It is crucial that you obtain legal advice in respect of Property Settlement before proceeding with your divorce.
Children under the age of 18 years old:
If there are children under the age of 18 years old to your marriage, the court will need to be satisfied that there are suitable care arrangements in place for the ‘care, welfare and development of the children[6].
Do you need help?
If you need help with your application for divorce then Coastal Lawyers can help. We offer a fixed fee divorce process to make the process of getting your divorce, stress free and certain in terms of your legal fees.
Book in a free 15 minute call to discuss your divorce today.
[1] Section 38 Family Law Act 1975 (Cth) there is jurisdiction if either spouse at the time of filing is an Australian citizen, domiciled or ordinarily resident in Australia.
Kristal was admitted as a lawyer in 2011. A former prosecutor, she has a Diploma in Law. A Graduate Certificate in Criminal Practice and is currently completing her Masters in Family Law (2022).
Kristal is a member of the Legal Aid Panels for criminal law and family law and domestic violence.
Fun Fact: Kristal loves all things mindfulness, meditation and “wu wu”.
Disclaimer: Because would we even be lawyers without one?
This article is not legal advice and has been prepared as a resource to assist members of the community and legal profession who wish to have an understanding of a particular area of the law.
You should always undertake your own research and/or consult with a lawyer to ensure that the information is up to date and relevant to your case.
In addition, the blog post refers to the law as current at a particular date. The law is changing regularly and accordingly, you should always refer to the legislation applicable at the time .
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“The person with the higher level of consciousness has the responsibility to lead”
Wow! Just wow!
This Kerwin Rae quote really rang true to me particularly for my family law clients.
Kerwin was discussing how important boundaries are.
Boundaries after separation are even more significant or important because by setting boundaries then we teach people how to treat us.
We show people what is and isn’t acceptable behaviour.
We take control of what the new “normal” will look like.
Often when couples seperate they are not at the same “stage” in the process.
I have talked before to so many of my clients about how experts compare the separation process to the grieving process.
• Shock and denial • Pain and guilt • Anger and bargaining • Depression • The upward turn • Reconstruction and working through • Acceptance and hope
Anyone who has been through a separation can probably really relate to the above waves of emotion.
So the next time you a navigating different areas of your separation, take a moment to consider how you can control your actions and behaviours because we all know we can’t control anyone else’s.
And if you need help with your separation then you can always jump online and book a 1 hour strategy session.
