A Mediation is a voluntary and confidential platform which is designed specifically to assist people in a dispute to reach an agreement.
Mediations are confidential in nature which means that anything discussed or disclosed in the mediation setting is generally not able to be referred to outside of the mediation, such as in legal proceedings (with a few exceptions to this rule).
The agreements that are reached during a mediation are not legally binding. They are established on the basis of good faith, and it is the initial responsibility of the parties involved to honour the agreement that was reached. That being said, reaching an agreement at mediation is often the starting point of creating a legally enforceable agreement.
What often occurs at a mediation once an agreement has been reached, is your legal representatives will then assist you in formally documenting and signing the agreement you have entered into. This document, once signed, is then no longer covered under the rules of confidentiality, and can be produced to a third person or to the court in the event that becomes necessary.
There are different ways to formalise an agreement that has been reached, and not all of which are legally binding for both parties.
For agreements about your children:
For family law parenting matters, an agreement reached can be formally documented in two ways:
- Through a Parenting Plan; or
- Through Parenting Consent Orders.
Parenting Consent Orders involves the drafting and signing of an Application, which is then filed online through the Federal Circuit and Family Court of Australia. Once properly drafted, signed, and filed, the Application will be reviewed by a Registrar of the Court. The Registrar must make a determination that the agreement you have reached is in the child or children’s best interests. If approved, the court will then issue both parents a copy of the agreement reached in the form of a sealed consent order. This Order is legally binding and enforceable on both parents until the children attain the age of 18 years.
If you instead wish to formalise your document into a less formal, and non-binding agreement, you may wish to document your agreement into a Parenting Plan. A Parenting Plan is not binding and enforceable on both parents. It is however a very useful way to formally document an agreement reached. It can be produced to the Court if later proceedings become necessary, to show what the intention and agreement was of the parties when the document was signed. It can also provide flexibility to parents who may want to trial an arrangement for a short period of time before coming back and reviewing those arrangements before locking anything in.
We recommend that you obtain advice from a family lawyer about which agreement is best for you, and also for your children(s) individual circumstances.
For agreements on your property settlement:
If you have attended a mediation about a property settlement, there are two ways to formally document your agreement reached:
- Through an Application for Consent Orders; or
- Through a Binding Financial Agreement (BFA).
Similar to the process of a Parenting Consent Order, you can formalise your agreement by drafting and signing an application for Property Consent Orders. Your application must be completed, signed, and filed online with the Federal Circuit and Family Court of Australia, where a Registrar of the Court will review your application. The Registrar will ensure the application has been completed properly, and that the agreement you have reached is just and equitable for both parties. If approved, the Court will then issue both parties a copy of the agreement reached in the form of a sealed consent order. This Order is legally binding and enforceable on both parties.
An alternative option to formalise your property settlement agreement is by way of a binding financial agreement. This option is also legally binding on both parties, however, is a less common practise, and you can have difficulties with the enforcement of your agreement. Formalising your agreement into a BFA opts you out of the Courts Jurisdiction and can be more easily set aside. Most specialised family lawyers will advise you against signing a BFA and advise you to instead formalise your agreement by completing and filing an Application for Consent Orders.
If you’re considering mediation, it’s essential to understand the specific rules and requirements in your jurisdiction. Always seek legal advice if you have any doubts about the enforceability of a mediation agreement.
Written by
Sophie Wilson
Family Law Solicitor
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