Updated 4 November 2026
CM Law's Ultimate 50 List - Separated Couples FAQ #13: What is the role of mediation in separation?
Explore CM Lawyers’ property settlement mediation services.
Mediation can help separated couples make practical decisions about children, money and property. Its value depends on suitable screening, reliable information and a clear plan for recording any agreement. Understanding what the mediator can do, and when legal advice or urgent court action is needed, makes the process more useful.
Mediation helps separated people identify disputed issues, exchange proposals and work towards an agreement with an independent mediator. The mediator manages the discussion but does not decide who wins. Parenting arrangements, property and financial issues can be addressed, although the process and documents needed to finalise each issue differ.
The Court explains the available dispute resolution options. A useful outcome may be a complete settlement, an interim arrangement or agreement about valuations and documents. Mediation does not itself grant a divorce, transfer property or make a court order.
Family dispute resolution, or FDR, is a particular process under the Family Law Act involving an independent practitioner. Accredited practitioners can assess suitability and issue the certificates relevant to parenting applications. A general mediator, counsellor or supportive relative does not automatically have those powers or the same statutory protections.
Confirm the practitioner’s accreditation, experience with your issues and proposed process before booking. Ask whether the session concerns parenting, property or both. A provider suitable for a parenting discussion may need different expertise or preparation for a complex business settlement.
Usually, a person seeking parenting orders must first obtain a section 60I certificate or establish an applicable exemption. Exceptions can include urgency, family violence, child abuse or inability to participate effectively. Consent applications also have different requirements. The rule does not require an unsafe joint meeting in every separated family.
A registered practitioner can issue different types of certificate, including where FDR is unsuitable or another person refuses to attend. A certificate does not decide parenting arrangements. Obtain advice about the evidence and filing requirements for an exemption.
Do the same requirements apply to property disputes?
Property proceedings generally require genuine efforts to resolve the dispute and compliance with pre-action procedures, unless an exemption applies. These can involve negotiation, mediation or another suitable process, together with financial disclosure. A parenting section 60I certificate is not required merely because you are seeking property orders or have children.
The Court’s property procedures recognise exemptions including family violence and urgency. Keep records of steps taken and obtain advice before filing. Continuing to negotiate does not automatically extend the deadline for starting a property or maintenance application.
The practitioner should assess whether participants can negotiate freely and safely, including family violence, unequal bargaining power, health and relevant financial knowledge. Suitability must be reconsidered as the process continues. If FDR is inappropriate, the practitioner must not conduct it simply because one person strongly wants a settlement.
Raise coercion, monitoring, threats or concerns about children during the screening process. Discuss safe contact details, separate arrival times and support needs. My practical advice is to identify these concerns before the appointment rather than trying to manage them silently during negotiations.
Do we have to sit together in the same room?
Not necessarily. Depending on suitability and the service, discussions may occur in separate rooms, through shuttle communication, by telephone or online. Lawyers and approved support people may be involved. These arrangements can help participation, but they do not automatically overcome intimidation or make an otherwise unsafe process appropriate.
Agree on breaks, interpreters, how private conversations work and how to stop the session. Legal Aid NSW explains its mediation arrangements. For online meetings, choose a private location and consider whether another person could overhear or monitor the discussion.
Prepare a reliable asset and debt list, income information, superannuation details, relevant financial records and valuations. Identify what is agreed, what remains uncertain and what further documents are needed. Without sufficient information, a proposed percentage or cash payment may look reasonable while leaving important liabilities or assets unexplained.
The financial disclosure duty is ongoing, including relevant preparation for proceedings. Include companies, trusts and overseas interests where relevant. Use documents obtained lawfully; do not access your former partner’s private accounts simply because you suspect something has been omitted.
How should parenting proposals be prepared?
Focus on the children’s safety, needs, routines and practical care arrangements rather than bargaining over equal shares of time. Consider school, travel, health, communication and decision-making. Children should not be asked to choose sides or used to deliver proposals. Any child-inclusive process needs professional assessment and careful planning.
Current family law obligations centre the child’s best interests; equal time is not automatic. Bring a workable calendar and identify problems that need solving. Do not trade a parenting concession for money or assume the mediator will interview the children.
Confidentiality depends on the process, the practitioner and applicable law. Accredited FDR has specific protections, with exceptions including certain child-protection and serious-risk disclosures. Confidentiality and whether material can be used as court evidence are separate questions. Do not assume every intake conversation, document or general mediation has identical protection.
Ask who is conducting each stage and read the confidentiality terms. The Attorney-General’s Department explains FDR protections and exceptions. Existing financial records do not become exempt from disclosure merely because someone brings them to a mediation or discusses them there.
Can I get independent advice during negotiations?
Yes. Independent legal advice can help you assess proposals, understand your rights and identify implementation problems. The mediator’s impartial role is different from representing you. Depending on the arrangements, your lawyer may attend or advise separately. Request time to clarify a proposal before agreeing to wording you do not understand.
I would check how each proposed transfer, refinance or payment will actually occur, including deadlines and third-party requirements. Ask for a break if necessary. An agreement that depends on unavailable finance may postpone the dispute instead of resolving it.
No. Its effect depends on what was agreed and how it is documented. Property settlements are commonly formalised through consent orders or a financial agreement meeting statutory requirements. Parenting plans differ from enforceable parenting orders. A mediator’s summary or signed discussion notes should not be assumed to finalise every legal issue.
The Court explains formal property agreements and parenting agreements. Financial agreements require independent legal advice. Proposed consent orders require court approval; property orders must be just and equitable and parenting orders must serve the child’s best interests.
Can I change my mind after consent orders are made?
Final property consent orders are binding and can be changed only on recognised legal grounds. Disappointment with the bargain does not by itself establish a right to reopen it. Fraud, duress or non-disclosure may be relevant, but the statutory requirements and evidence must be considered before making an application.
Get advice promptly if you believe consent was not genuine or information was concealed. Sections 79A and 90SN address setting aside property orders. Do not simply stop complying with existing orders while deciding whether to challenge them.
In Adler & Madigan [2019] FCCA 194, a couple reached property settlement terms at mediation and later obtained consent orders. The husband subsequently sought to set those orders aside, alleging duress and suppression of evidence. His application failed, illustrating why preparation and informed agreement matter before an arrangement becomes binding.
The parties signed heads of agreement at the 2017 mediation, then finalised orders in May 2018 with legal representation. When the wife sought enforcement, the husband challenged the settlement. The Court rejected the challenge, finding no established miscarriage of justice and no reasonable prospect of success. The property orders remained in force and the Court directed payments from the remaining sale proceeds. Costs were left for further submissions, so no final costs award is asserted here. The decision does not mean genuine coercion or non-disclosure can never justify relief.
You can record any agreement reached, identify outstanding issues and consider further negotiation, additional information or court proceedings. A failed session does not mean all preparation was wasted. However, repeated sessions should have a clear purpose, particularly where safety, missing disclosure, urgent asset risks or approaching deadlines require another approach.
Ask for a written explanation of the next procedural steps without unnecessarily circulating confidential discussions. Compare the cost of further mediation with the issues remaining. There is no reliable universal success percentage, fixed timetable or guaranteed saving for an individual family.
CM Lawyers can explain your legal position, help organise disclosure and proposals, advise on safety and suitability, and assist with documenting an agreement. We can also explain alternatives where mediation is unsuitable or unsuccessful. The aim is a workable resolution whose practical and legal consequences you understand before committing.
Discuss property mediation or parenting mediation on 02 9557 9000, email lawyers@cmlaw.com.au, or contact us. Our office is Level 3, Unit 3.07, 18–30 Faversham Street, Marrickville NSW 2204.
General information only, current at 4 November 2026. Obtain legal advice for your circumstances.
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