No, mediation in itself is not legally binding. However, if both parties reach an agreement during mediation, they can choose to formalise it legally. This can be done by drafting Consent Orders for parenting and financial matters, or a binding agreement for financial matters only, without needing to go to court.
Understanding how mediation works in family law
Many people turn to mediation as a constructive and cost-effective alternative to court when facing disputes. It’s also often a required step before going to court, giving separated couples an avenue to resolve their parenting and property matters without landing in court. Even when mediation fails, if both parties have made a genuine effort to address their matters, it usually makes the rest of the legal process easier.
One common question that arises is whether mediation is legally binding. Understanding the legal weight of mediation and the options for formalising any agreements made can help you make informed decisions during the process. We’ll look at the process and avenues for legal finalisation of matters below.
Why mediation?
Many separated couples want to finalise their legal matters after a relationship breakdown without the stress and costs of the court process.
Mediation is a highly effective option for this and an excellent tool as long as the process, potential outcomes, and limitations are understood. It’s not suitable for everyone, but for many, it’s an excellent pathway towards finalising the legal aspects of shared property and parenting matters.
Mediation – a neutral, structured environment – without a formal ‘judgement’
Mediation is a form of alternative dispute resolution that provides a neutral, structured environment where separating couples can resolve family law matters without a formal court judgment. This process allows involved parties to have more control over their outcomes and discuss the right pathways forward for them.
It’s a voluntary and confidential process led by a neutral third party who helps guide constructive discussions. Although it is often required before having a parenting matter heard in the Federal Circuit and Family Court of Australia, it aims to reach a mutually acceptable agreement on issues like parenting and property. While outcomes aren’t automatically binding, they can be formalised legally, as long as both parties are happy with what’s agreed on.
How is mediation different from the Family Court process?
The great thing about mediation is that you and the other party can attend without the court staff and any administrative parties viewing all of your private family and/or financial details, and details of any legal disputes.
It’s confidential in the majority of cases. It’s a happy medium between two parties negotiating between themselves and a formal court judgement, allowing much more autonomy in the decision-making process in a low-pressure environment. If it doesn’t work out, you can either go again at a later date, leave the issue ‘as is’, or proceed with court.
The goal is to reach an agreement and action it. This may be done through parenting plans, property transfers, or by making legally binding agreements or enforceable orders.
How to prepare for mediation
Mediation is a voluntary process in which an independent person helps the parties involved reach an agreement in a safe environment. Most mediations focus on resolving disputes early to avoid future litigation. Many people work with a family lawyer before, during, and/or after the mediation process to get the best out of their mediation and ensure agreements are fair and practical.
To prepare, both parties will need to do an intake with their mediator, gather relevant documents and consider the outcomes they want. Attending in good faith and with a willingness to compromise is essential. If parties agree, the outcome can be formalised as an enforceable agreement or contract enforceable under Australian law. A family lawyer can assist with this process.
Mediation agreements – what are they, how to get one
Mediation agreements are written documents summarising the outcomes agreed upon during mediation. They outline the responsibilities and arrangements to which both parties commit.
While not automatically legally binding, these agreements can be made enforceable by converting them into consent orders or drafting a binding contract. To get one, parties typically work with their mediator and may seek legal advice to formalise and lodge the agreement with the court if needed.
Agreements that can be reached in mediation
If you and your former partner are happy with the agreements reached on any matter/s that have been discussed when you attend mediation, your mediator will draw up a Mediation Agreement. This is a written agreement outlining what’s been discussed and stating that the parties intend to follow a specific plan of action after the mediation.
This may be:
- Who children will live with, and when
- Who will pay certain bills or debts
- Changes to a current parenting plan or parenting orders to be actioned
- One parent being able to relocate with the children on certain grounds
- Changes to the children’s education or child support agreements
- Who keeps the family home
- How superannuation, cars or other marital assets will be divided
It’s important to seek legal advice before and after mediation to understand your rights and ensure any agreement is legally sound.
Options to make mediation legally binding
Mediation can help resolve family disputes, but not all outcomes are automatically enforceable. Here are the main options under Australian law to make your mediation agreement legally binding.
1. Parenting plan
- A written agreement between parents about parenting arrangements.
- Not legally enforceable on its own, but can be used as evidence in court if disputes arise.
2. Consent orders
- Parties apply to the Family Court to have their agreement made into a legally enforceable court order.
- Can cover parenting and/or financial matters.
- Must be approved by the court as being in the best interests of the child (if children are involved).
3. Binding Financial Agreement (BFA)
- A private, legally binding agreement about financial arrangements, made before, during or after a relationship.
- Must comply with strict legal requirements, including independent legal advice for each party.
- Enforceable under the Family Law Act 1975, but not approved by a court.
4. Court orders after mediation
- If mediation is part of ongoing court proceedings, the outcome can be filed with the court and made into orders.
- Legally binding and enforceable.
How long does the formalisation process take after mediation?
Whilst mediation offers a fairly time-efficient process in most cases, after you reach an agreement with your former partner or co-parent, multiple steps can be required for an enforceable order or financial agreement to be drafted and finalised. Consent orders for parenting or property will still need to be signed off in court, and it may take a few months for your matter to be addressed.
If there are complex property matters, further time may be required for valuations, taxation advice, or the transfer or sale of assets before the final outcome is reached.
Benefits of mediation
Mediation offers many benefits, including lower costs and faster resolution compared to court proceedings. It also provides a private, confidential setting, reducing public exposure to the disputing parties’ personal matters.
Most people find a mediation session far less stressful and more flexible, allowing parties to have greater control over outcomes. Mediation encourages cooperation and open communication, often leading to solutions better tailored to everyone’s needs, especially when children are involved. Overall, it’s a practical, respectful way to resolve disagreements and an effective method to prevent future disputes.
When is mediation not legally binding?
Mediation is not legally binding when the outcome is informal or recorded only as a verbal agreement or a non-binding written summary, for example:
- Parenting plans (unless turned into court orders)
- Agreements made without legal formalisation
- Informal understandings between parties
Unless the agreement is formalised through a consent order or binding contract, it cannot be enforced by a court. Mediation relies on voluntary compliance unless legal steps are taken afterwards.
Can’t reach an agreement? How Section 60I’s work
Section 60I of the Family Law Act 1975 requires separating parents to attempt family dispute resolution (such as mediation) before applying to the court for parenting orders. After mediation, a Section 60I certificate confirming participation or exemption is issued. This encourages resolution outside the court and ensures parties try to reach an agreement in good faith.
Tip to make mediation successful and legally binding
Mediation can help resolve disputes, but for agreements to be legally binding, certain steps increase the chances of success. Being prepared for mediation can make all the difference to the outcomes.
- Both parties are genuinely willing to reach agreement
- Come prepared with documents and clear goals
- Know what’s agreed, what’s flexible, and what’s non-negotiable
- Example: summer holidays negotiable, Easter Sunday not
- Ready to formalise the outcome as a consent order or binding agreement
Following these steps improves the likelihood that your mediation outcome will be formalised and enforceable under Australian law.
Need some legal advice on mediation or legally binding family law agreements?
Need legal advice on mediation or making family law agreements legally binding? Our experienced family lawyers and mediators can guide you through the process, help prepare documents and ensure your rights and interests are protected. To book mediation or expert support on a clear path forward, get in touch with the team at Stewart Family Law today.
