When you attend at mediation and reach an agreement, the mediator will ask you to document the agreement you have reached. There are a number of ways that the agreement can be documented, ways that are binding and ways that are not binding and may need the assistance of a lawyer to draft.
You can record your family law agreement in a number of ways.
Your agreement can be recorded in the form of a court order and lodged with the court via an Application for Consent Orders. The agreement must be drafted in the form of an order that would be made by the court. Usually, parties have the assistance of a lawyer to assist them with the drafting. The proposed orders are signed and lodged with the court along with the application form, which gives the court a short summary about the matter.
Both property matters and parenting matters can be formalised in this way when an agreement has been reached. You can record your property matter and parenting matters separately or you can have a combined order dealing with both property and parenting.
Your agreement for property matters can also be recorded in a financial agreement. A financial agreement is a document prepared by lawyers and witnessed by lawyers. To be considered a binding document, a financial agreement must be in writing, set out the terms of your agreement, be signed by both parties, and before the parties sign the agreement, have independent lawyers certify that they have each received advice about the agreement. Sometimes a financial agreement is used in preference to a consent order for property matters where there are spouse maintenance issues that need to be recorded where a financial agreement is the most appropriate way to deal with spouse maintenance.
The third way to record an agreement, for parenting matters only, is through a parenting plan. A parenting plan is not a binding agreement between the parties, however it is a document that a Court would take into account in the event that there was a dispute before the court after the mediation. The Family Law Act says that if it is hearing an application and there is a parenting plan which is in place, then the court must have regard to that parenting plan if it is in the best interest of the children to do so.
Finally, it may be that you reach the end of your mediation with a general agreement about how things are going to be divided in your property matter or a general understanding about the arrangements for the children. If this is the case, then the mediator might help you prepare a Heads of Agreement, which is the document that records the agreement in summary form subject to a formal agreement being prepared either as a consent order or a financial agreement. This is not a binding document, however if a party decides after the mediation that they no longer want to be bound by the agreement, then mechanisms can be put in place to allow the Heads of Agreement to be shown to a court if there are costs arguments.
The type of agreement that you will reach at mediation will ultimately depend on the dispute, whether you have lawyers present with you and whether the mediator can assist you with drafting any documents. It is not the role of the mediator to prepare complex legal documents which set out your agreement. It is not the role of the mediator to prepare an application for consent orders or draft a financial agreement. This is the role of the parties’ individual lawyers.
A mediator can assist you to prepare a parenting plan recording the agreement which you have reached about your children. A mediator can also assist you in preparing the Heads of Agreement setting out a high-level summary of any agreement reached on property and parenting matters.
In essence, the short answer to the question are mediation agreements binding is – it depends. It depends on the type of dispute, the parties, whether there are lawyers involved and whether documents have been prepared in advance by those lawyers with a view to signing an enforceable agreement at the end of the day.
