Mediation after separation:
resolving disputes without escalation.

Mediation is a structured negotiation facilitated by an independent mediator. The mediator manages the process but does not impose a decision. Typical features include:

• Identifying the issues.
• Exchanging relevant information.
• Discussing concerns and priorities.
• Considering options.
• Testing whether proposals are workable.
• Recording any agreement reached.

Mediation does not require agreement. Where agreement is reached, it usually still needs to be formalised before it has legal effect. For an overview of what to address in the first weeks after separation, before any mediation, see the separation cornerstone guide.

Family Dispute Resolution, commonly called FDR, is a specialised form of mediation conducted by a registered Family Dispute Resolution Practitioner. FDR is most commonly associated with parenting disputes.

People seeking parenting orders generally need to make a genuine effort to resolve the dispute through FDR before filing, unless an exemption applies. The pre-filing FDR requirement applies to parenting applications; financial and property matters are subject to a separate set of pre-action and dispute-resolution expectations, not the same parenting-FDR regime.

Parenting mediation may address a wide range of practical and decision-making issues, including:

• Where the children live.
• Time with each parent.
• School and childcare.
• Holidays and special occasions.
• Changeovers.
• Medical decisions.
• Communication.
• Travel.
• Practical routines.
• How parents will make future decisions together.

Parenting mediation works best when the focus stays on the children's needs and on workable practical arrangements, rather than on adult grievances. Parental preferences do not override safety or the child's best interests.

Property mediation may address the full range of financial issues following separation, including:

• The family home.
• Investment properties.
• Mortgages and debts.
• Bank accounts.
• Businesses and trusts.
• Superannuation.
• Vehicles and personal property.
• Sale or transfer arrangements.
• Refinancing.
• Payment dates.
• Implementation costs.

Meaningful property mediation generally requires adequate financial disclosure and reliable values. For the wider framework, see Assets, debts and the family home and reaching a property settlement without going to court.

The answer depends on whether the dispute is about parenting or about property.

Parenting matters

Before applying for parenting orders, parties generally must make a genuine effort to resolve the dispute through FDR and file a valid section 60I certificate, unless an exemption applies.

Property and financial matters

A section 60I certificate is not generally the requirement for a property-only application. Parties contemplating financial or property proceedings are generally expected to comply with pre-action procedures and to make a genuine effort to resolve the dispute before filing, subject to applicable exceptions.

The parenting FDR regime and the property pre-action procedures are not the same, and they should not be conflated. Specific advice should be obtained on what is required in a particular matter.

Exemptions from compulsory pre-filing FDR may apply in some circumstances, broadly including matters involving:

• Family violence.
• Child abuse or risk.
• Urgency.
• Inability to participate effectively.
• Certain recent breaches of existing orders.

This is a general indication rather than an exhaustive legal test. Legal advice may be required where an exemption is being considered.

Mediation discussions are usually private and subject to confidentiality rules. Confidentiality is not, however, absolute. Possible exceptions may relate to:

• Risk of harm.
• Child abuse.
• Threats.
• Legal reporting duties.
• Implementation or enforcement of an agreement where permitted.
• Professional obligations.

The precise scope of confidentiality depends on the type of mediation, the practitioner and the applicable rules. Complete confidentiality should not be assumed in every setting.

The mediator may:

• Set ground rules.
• Structure the discussion.
• Identify issues.
• Manage communication.
• Help clarify proposals.
• Reality-test practical options.
• Use separate sessions where appropriate.
• Assist with recording areas of agreement.

The mediator does not:

• Act as either party's lawyer.
• Provide personalised legal advice to one party.
• Decide who is right.
• Impose parenting or property terms.
• Guarantee settlement.

A practical checklist before parenting mediation:

1. Identify the children's current routines.
2. List school and medical commitments.
3. Consider travel and changeover arrangements.
4. Identify safety concerns.
5. Focus on practical proposals rather than grievances.
6. Distinguish immediate issues from long-term arrangements.
7. Prepare a calendar if useful.
8. Consider how communication will occur between sessions.
9. Obtain legal advice about proposed terms where necessary.

A practical checklist before property mediation:

1. Complete financial disclosure.
2. Current bank and loan statements.
3. Superannuation statements.
4. Property appraisals or valuations.
5. Business and trust records.
6. Tax information.
7. Details of debts.
8. Refinancing information.
9. Estimated sale and transfer costs.
10. Realistic settlement options.
11. Implementation steps.

For closer treatment of common property issues, see joint bank accounts after separation, superannuation after separation, keeping the family home after separation and who pays the mortgage after separation.

Mediation may take different formats depending on the situation:

• Both parties in one room.
• Shuttle mediation, with the mediator moving between separate rooms.
• Online sessions.
• Separate rooms throughout.
• Support people, where permitted.
• Lawyer-assisted mediation.

The format should be selected with safety, participation and practicality in mind, not just preference or cost.

Online mediation may offer:

• Reduced travel.
• Geographic flexibility.
• Easier separate-room arrangements.
• A lower logistical burden.

It also raises some challenges:

• Technology requirements and stability.
• Privacy at each end.
• Access to documents during the session.
• Interruptions in the home environment.
• Greater difficulty assessing communication or safety remotely.

Lawyers may assist by:

• Preparing disclosure.
• Identifying legal issues.
• Advising during negotiations.
• Helping formulate proposals.
• Reviewing draft terms.
• Documenting agreement.

Lawyer involvement does not turn mediation into a court hearing. The mediator still facilitates; lawyers advise and support their clients in parallel.

Power imbalance may arise from any of the following:

• Family violence.
• Financial control.
• Language barriers.
• Disability.
• Unequal access to information.
• Emotional pressure.
• One party controlling the finances.
• Fear of consequences.

Possible safeguards may include:

• Separate sessions.
• Legal representation.
• Support people.
• Interpreters.
• Staged disclosure.
• Online or shuttle formats.
• Postponing or declining mediation.

Safeguards reduce risk; they do not make every matter suitable for mediation.

Mediation may be unsuitable where there is:

• Immediate safety risk.
• Coercive control.
• Serious family violence.
• Threats.
• Inability to negotiate freely.
• Deliberate non-disclosure.
• Asset dissipation.
• Urgent risk to children or property.
• Inability to understand or participate.
• Need for urgent orders.

Declining mediation is not unreasonable where safety or fairness is compromised. In some matters, the appropriate response is legal advice or an urgent application, not another negotiation.

The general sequence may include:

1. Intake or assessment.
2. Identification of issues.
3. Opening discussions.
4. Exchange of proposals.
5. Joint or separate sessions.
6. Negotiation.
7. Testing the practical consequences of proposals.
8. Recording agreement or unresolved issues.

Processes vary between practitioners and services. A pre-mediation conversation about the format and approach is usually worthwhile.

The next step depends on whether the dispute is about parenting or about property.

Parenting

• A parenting plan.
• Consent orders.
• An interim written arrangement.

A parenting plan and consent orders have different legal effects, and the right choice depends on the circumstances.

Property

• Heads of agreement.
• Consent orders.
• A binding financial agreement, where appropriate.
• Implementation documents.

A mediated agreement may still require formal legal documentation before it is fully effective. A mediated outcome is also separate from the separate formal divorce process, which has its own requirements and timing.

At a high level:

• A parenting plan is a written agreement signed and dated by the parents.
• It is not enforced in the same way as a parenting order.
• Consent orders are court orders made by agreement.
• Legal advice may be important before deciding how to document arrangements.

This guide does not provide drafting instructions. The point is that there is a meaningful difference between a parenting plan and a consent order, and the choice has consequences. For a closer look, see the difference between parenting plans and consent orders. For the wider parenting framework, see parenting arrangements after separation.

For property matters:

• An agreement in principle may not complete the property settlement.
• Consent orders can formalise agreed property arrangements.
• The Court considers whether proposed property orders are just and equitable.
• Refinancing, transfers, superannuation and tax steps may still need implementation.

For more on the pathways available, see property settlement without going to court. Further material on binding financial agreements will appear in the Financial agreements guide category as it is published.

Mediation may produce a range of outcomes, not only complete agreement or complete deadlock:

• Full agreement.
• Partial agreement.
• Agreement on interim arrangements.
• Agreement on disclosure or valuation.
• A narrowed list of disputed issues.
• No agreement.

Partial resolution may still reduce cost and conflict by narrowing what remains in dispute.

Possible next steps include:

• Further negotiation.
• Obtaining missing disclosure.
• Valuation.
• Another mediation.
• Arbitration for eligible financial disputes.
• Court proceedings.
• Urgent legal advice where deadlines or risks exist.

An unsuccessful mediation is not wasted effort. Issues are usually clearer, disclosure is more developed, and the parties have a better sense of what is in dispute. Where timing is a concern, see property settlement time limits.

Briefly:

• A mediator helps the parties negotiate.
• An arbitrator makes a decision in eligible financial or property disputes.
• Arbitration is not generally used to determine parenting disputes.
• Arbitration involves different procedural and legal consequences from mediation.

Whether arbitration is suitable in a particular matter is a question for specific advice.

Mediation may reduce cost and delay compared with a contested hearing. It is not free in every case. Possible costs include:

• Mediator fees.
• Lawyer fees.
• Valuation fees.
• Financial advice.
• Document preparation.
• Venue or technology fees.

Mediation is often less expensive and less stressful than litigation — but not always, and not in every case.

Factors worth considering may include:

• Qualifications.
• Registration, where FDR is required.
• Family-law experience.
• Parenting or property expertise.
• Safety-screening procedures.
• Ability to conduct shuttle or online mediation.
• Availability.
• Fees.
• Approach to lawyers and support people.

• What issues will be discussed?
• What documents must be exchanged?
• Is the mediator appropriately qualified?
• Will there be an intake and safety assessment?
• Can separate sessions be used?
• Can lawyers attend?
• What happens if agreement is reached?
• How will terms be recorded?
• Are there urgent deadlines?
• What happens if mediation is unsuitable or unsuccessful?

A few recurring assumptions are worth correcting carefully:

• "The mediator decides the outcome." The mediator facilitates; the parties decide.
• "Mediation is only for parenting disputes." Mediation is widely used for property and financial matters as well.
• "Every family-law matter requires a section 60I certificate." Section 60I is associated with parenting applications, not property-only proceedings.
• "Mediation is safe and suitable in every case." It is not — safety, disclosure and power imbalance all matter.
• "An agreement made at mediation is automatically a court order." Mediated agreements usually require separate formalisation.
• "Starting court proceedings prevents mediation." Mediation often continues, and succeeds, after proceedings have been commenced.
• "If mediation fails, nothing useful was achieved." Mediation often clarifies issues and disclosure even where no agreement is reached.
• "Mediation means neither person should obtain legal advice." Legal advice remains important; the mediator does not replace it.