One of the aims of the Family Court is to try to help people to sort out their problems themselves. People are more likely to be happy with an arrangement that they have agreed to themselves, rather than one that has been imposed upon them by a Judge.  This means that they are also more likely to stick with the agreed arrangements.

Whenever somebody applies to the Court for a custody or access order, both parties are first referred to counseling.  If they are unable to come to an agreement, or if there are still matters in dispute, then the next step is to have a mediation conference.

What Exactly Is It?

A mediation conference is a “round table” meeting with a Judge.  It is a chance for both parties to discuss disputed issues with a Family Court Judge, and to try to reach an agreement.  The Family Court Judge chairs the conference, and makes sure that both parties have the chance to express their views.

Your lawyer can attend the mediation with you, but this is not a requirement.  Your lawyer will be able to provide advice and assistance if necessary, however lawyers are encouraged to “take a back seat” and are unlikely to play a major role. The Judge wants to talk to you and the other party, not the lawyer.

If the Court has appointed a lawyer to represent the children, that lawyer may also attend.

The mediation conference will take place at the Family Court.  It can either take place in the Courtroom, or in a special mediation conference room, with a large table for everyone to sit around.  The atmosphere is much more relaxed and informal than at a Court hearing.

What Happens?

The first thing the Judge will try to do is to find out what issues you disagree on.  He or she will encourage both parties to come to an agreement about some or all of the disputed issues.  The Judge’s role is to help the parties to consider all possible options.

If you come to an agreement about any of the issues, then the Judge can make binding orders.  Orders made in this way are called “consent orders”, which means that they are made by the Court with your consent.

If you do not want the agreement to be recorded as consent orders, you can simply have the agreement recorded, or used as the basis for a formal legal agreement to be prepared later by your lawyer.

If at any stage during the mediation conference you want to speak in private with your lawyer, then you are able to do so.  You may wish to speak privately with your lawyer before the Judge writes down an agreement, or before consent orders are made.

What if we don’t reach an agreement?

If you cannot come to an agreement, then the Judge can postpone the conference to give you both time to check your options, or find out more information.  You could also be given time to try out a temporary arrangement, or could be referred to further counseling.

The Judge could also appoint a lawyer to represent your children (if that has not already been done), and that lawyer may help you come to agreement.

The Judge also has the power to request a specialist report from a psychologist or social worker.

If it is not possible for you to come to an agreement, then the matter needs to go to a Family Court hearing.

In most situations the Judge who chairs the mediation conference will disqualify themselves from hearing the case at a later Court hearing.

It is important to remember that any statements made at the mediation conference are “privileged”.  This means that they cannot be used in evidence at a Court hearing.  The purpose of this rule is to allow both parties to talk freely and openly about the issues without worrying about whether it will harm their case in Court.