There are different types of mediation and not all of them require a lawyer to attend. In some circumstances, however, it may be helpful for a lawyer to assist a party at mediation. In this article, we will review when a lawyer is necessary and how a lawyer might be useful to a party in a mediation.
If you are attending a private mediation, then you are allowed to bring a lawyer with you to mediation. This is different to the publicly available mediation services through Relationships Australia and the Family Relationships Centres. These include agencies such as UnitingCare Community. In the publicly available system, you are not allowed to bring a lawyer. These mediations are facilitated by experienced family dispute resolution practitioners. They involve intake sessions with the mediator and then a time-limited three hour mediation session, which is free to those parties who meet the income tests. There is a minor fee for those parties do not meet the income test.
For private mediation, you do not have to bring a lawyer, particularly if you don’t have a lawyer currently engaged in your matter. Sometimes, even where lawyers are currently engaged, parties will be encouraged to attend mediation on their own with an experienced family law mediator. This saves the parties the costs of having their lawyers attend at that mediation process. Some lawyers assist their clients by being available by telephone or email on the day of the mediation to talk through any issues or concerns.
It is helpful to have a lawyer present if there are tricky legal arguments to have with the other party on the day. Other occasions where it is helpful to have a lawyer present include relationships where there is a significant power imbalance between the parties and one of the parties needs additional support which is objective and focused on the dispute at hand, as opposed to the subjective advice received by well-meaning family and friends.
Lawyers are very helpful in property matters, particularly if there is drafting involved to assist the parties working towards a written agreement. Having the lawyers present means that as an agreement is reached on certain items, those parts of an agreement can be drafted with the ultimate aim of having a document that is binding or able to be registered with the court within a short period following the mediation.
There are certainly instances where lawyers are not helpful at mediation. If a lawyer will not allow a client to speak on their own behalf or they are argumentative or obstructive as part of the negotiation, then that is not a helpful process for the parties.
Overall the benefit of having some objective advice on the day of your mediation, whether the lawyer attends or is available by phone, is helpful.
Whether you bring a lawyer along to your mediation will ultimately be a matter for you to make an assessment regarding your own circumstances. Each matter is different. The dynamics between separated couples is different on each occasion. Have a think about the outcome you are trying to achieve in your matter and work out whether a lawyer might assist you in that process.
