Divorce is tough. Yet, the way you part ways, has repercussions that stay with your children for a long time and your decision to mediate instead of litigate is one of the most important decisions you will take while going through it, not just legally but psychologically.
The courtroom creates loyalty binds
When contested by a parent, research shows that mediation means children are significantly less likely to lose touch with the non-resident parent. Moreover, they maintain much smaller reductions in staying contact (by over 50%) and overnights (40%) with the non-resident parent. When they do, the loss isn’t typically the court-ordered minimum, as in adversarial separations – often because the greater buy-in from both parents has delivered an agreement that feels more genuinely owned. If you’ve designed the schedule together, you’re less likely to slink off it.
Many mediators, particularly those trained to deal with family issues, will also involve the children in what they call “child-inclusive mediation”. This doesn’t mean sitting the kids down in the same room and having their mum and dad interrogate them about which of their parents should have their care or how much ice cream they’d like to eat. Instead, children get to meet the mediator. They get to explain how they’re feeling, or if they’re old enough to, even what they’d prefer – in the full recognition that it might not be what they’re going to get.
Customized arrangements beat boilerplate orders
Every family is different, with their own unique dynamics and needs. A family lawyer Sydney residents trust will tell you that a family court judge, while well-intentioned, cannot possibly know or accommodate all the specific details and logistics that may work best for your family. Maybe your son has a medical condition that requires weekly appointments, or your ex-spouse has a schedule that changes every month. These things are not inherently wrong or impossible; they simply may not come to light in litigation.
With mediation, you’re empowered to craft a plan that’s tailored to your children, your situation, your relationships, and your needs. Maybe this includes creative solutions like birdnesting or more conventional approaches, like a weekly schedule that changes based on the working parent’s shifts. The point is that you get to create those solutions, rather than having a third-party determine them for you.
Stability returns faster
Children thrive on routine. When a matter takes 12 to 18 months – or more – to resolve through the court system (which is not uncommon if it’s a contested case), children are left in a state of limbo for an extended period. They don’t know where they will be in a year. They don’t know if they will still be at the same school. This type of ambiguity can be incredibly stressful.
Mediation often takes weeks to reach a resolution. This means children get predictability sooner. The sooner your children can get back to their routine and have some certainty in their lives once more, the better.
About 70% of separated parents who use mediation or lawyer-led negotiation will resolve their dispute and never darken the door of a courtroom in relation to their parenting and/or property arrangements (Australian Institute of Family Studies). This is a huge proportion of families who are spared the elongated stress of litigation.
Protecting the family’s financial future
Litigation that is being contested can be very costly for the parties involved. Legal fees for complicated family court cases can easily add up to tens of thousands of dollars or even more in high-conflict situations. This is money that families will need for their children’s school fees, to ensure they have stable housing or to build up that financial buffer that makes children feel safe through adolescence.
Mediation will only cost you a fraction of that amount. And because it usually is completed more quickly, the indirect costs of litigation are also significantly lower. That is time missed from work, but also the emotional strain and stress, which can have a severe impact on your health and your ability to be present for your children.
For separating parents, who are genuinely trying to act in their children’s best interest, this is just one more reason to opt for mediation, rather than spend the money on lawyer’s fees. Settlement through mediation is more likely to be financially optimal for both parties. When both parties have agreed to the terms of their divorce, it is less likely they will end up in court again at a later date because one party is seeking to have the financial settlement revisited.
Turning agreements into legal certainty
Coming to a mediated agreement is one thing. Ensuring it’s legally solid and therefore enforceable is another. In the event of mediation, a parenting plan doesn’t come as a direct court order; instead, it’s regarded as a private agreement. It has to be lodged as Consent Orders so that it becomes binding and carries the same legal weight as a judgment, yet no trial is needed.
During this phase, you’ll want to engage with an experienced family lawyer to make sure your agreement is properly outlined, caters to all legally-binding clauses, and is free of loopholes that might lead to disputes later on.
The mediation process and its legal finalization work best as a sequence rather than choices to be made between the two.
You’re going for mediation, not just because it’s a cheaper and quicker alternative to the courts. You’re picking a path toward co-parenting that is built with communication, rather than conflict, and you’re making the same choice about how your children will remember their childhood.