VIC Mediation question.

[Fonzi75]

I am self represented in a property and parenting matter. My previous lawyers arranged some consent orders with one part being a mediation will take place to discuss financial matters.

The notation reads - The parties agree to attend a private mediation in relation to final property settlement between them at a date to be agreed between the parties, with such Mediator as agreed between the parties and in terms otherwise agreed between the parties.

My terms are that we discuss parenting matters as well as financial but the other side do not agree. The mediation is supposed to be this Friday. There are no pressing financial issues in the sense that she has plenty of money to survive with more coming and some maintenance being payed by myself being bills etc. Am I with my rights to say that because we don't agree to the terms of the mediation that I cannot participate until we do? They claim I cannot and will seek a costs order against me.

It feels like I am being bullied to agree to the mediation even though the terms are not agreed.

Can anyone advise if I have to proceed as the main topic of discussion is settling finances?

 

[Rob Legat - SBPL]

I'm not a family lawyer, but I think it's pretty clear from your comments and the notation to the consent orders that the purpose of the mediation is 'final property settlement'. 'Parenting matters' is a separate consideration.

While it does say "in terms otherwise agreed", that doesn't mean you can bring in anything that you want to discuss. Legal interpretation states that the scope of the mediation is specifically set as 'property settlement' and the amount of play in respect to the terms of discussion must fit within that specific topic.

 

[Rod]

I tend to agree with @Rob Legat - SBPL

You are trying to change the terms already agreed to - property, by wanting to include parenting.

Go along and stick to property. This however can include payment of bills if they are not included in parenting issues.

 

[GlassHalfFull]

It seems like what the OP is asking is whether it is reasonable that costs be sought if he doesn't agree to participate in mediation rather than deciding what can be discussed in mediation. According to the consent order, it's conditional on 'an agreement' being made about a date, a mediator and other terms that may not be forthcoming. What if no agreement can be made? Presumably the mediation cannot go ahead. You can't bully someone into going to mediation if they don't agree on who will facilitate it and when it will occur, surely. Those are to be agreed to by both parties, not unilaterally decided by one...

However... it sounds like the OP did agree to mediation (albeit under a misunderstanding of what it would be involve) and then changed their mind, by which time costs had been incurred by the other party, and they would rightfully feel annoyed by it.

In any case, since there is nothing legally binding that can be extracted from mediation (nor can anything discussed in mediation be used in court, unless I'm mistaken?), I suppose it's correct that he should just go, not agree to any of the negotiation, and apart from whatever the mediation costs are, he's no worse off for it.

 

[Fonzi75]

I tend to agree with @Rob Legat - SBPL

You are trying to change the terms already agreed to - property, by wanting to include parenting.

Go along and stick to property. This however can include payment of bills if they are not included in parenting issues.

Your response is exactly right and the one I was looking for. In any case I'm only paying half the cost of the mediator and with Covid-19 there are no room hire costs. I will attend but obviously am under no obligation to agree.

 

[sammy01]

You could agree 'in principle' with an understadning that you want consent orders for property and kids done together. (If you come to an agreement). I'd make that the first point of discussion. Any agreement pertaining to finances will only be honoured if an agreement around kids can be sorted. Be ready to argue that yo'ure not using the kids as pawns. You simply want an even playing field in the negotiations. SHE wants $$$ finalised. You want kids finalised? WHY is it her priority is more worthy than your's? IT isn't. So a fair solution is it all gets signed off when there is an agreement about both issues. If she's not prepared to play nice then talk to the magistrate...

BUT - tell us? what do you want to happen with the kids? My plan is only gonna work if you're not trying to over-stretch with your expectations of what will happen with child access.

 

[Rod]

You could agree 'in principle' with an understadning that you want consent orders for property and kids done together.

The problem the OP has is there are existing consent orders. Should the OP decide to not to agree to mediation because he wants to talk parenting, then the other side gets to go him for costs.

Stick to property. There is nothing saying you need to agree, though you likely need to be seen as reasonable, then in next round of discussions, or in new consent orders, you add in parenting.

 

[Atticus]

You could agree 'in principle' with an understadning that you want consent orders for property and kids done together. (If you come to an agreement).

I agree..... Not unreasonable that you place a caveat on any financial arrangements... Not sure I would announce that at the beginning though..... Given that any final financial arrangements can be impacted by care arrangements, in that regard it's a bit difficult to treat the two as totally separate issues

My previous lawyers arranged some consent orders with one part being a mediation will take place to discuss financial matters.

So are these actual consent orders (as in final orders by consent) that you are seeking to vary, or some kind of interlocutory order that has been agreed to?

 

[Poidah]

previous lawyers arranged some consent orders

Sounds like they were draft consent orders written by his previous lawyers? Which have not been submitted nor accepted by the court, is that right Fonzi?
You should agree to mediation, or propose to another form of mediation. If you do not agree to mediation and not attend, then the other side can just attend mediation without you and after a couple of times, get the certificate to proceed to court submission and orders.
Please check that the proposed mediator is registered with the Attorney General federal govt as well. Sometimes, unregistered mediators are proposed because they can not provide a certificate for court, while chipping away your finances and energy. Independent mediators may be selected as well on the priviso that child welfare and parenting discussions are prohibited, hence why govt agencies suggested below may be another option.

Any agreement pertaining to finances will only be honoured if an agreement around kids can be sorted.

sammy01, I thought a consent order can be submitted without a parental agreement or parental order? That parenting orders can be negotiated at a later stage? Fonzi is in a financially weaker position now by the sounds of it, if finances are not agreed to and approved asap, it would be detrimental for Fonzi right now.
I agree with Rod though, add in parenting later when Fonzi's finances are more secure, but keep your documentation that parental agreements were refused etc. If you are able to take the financial hit though Fonzi, then push for parental orders and call your local government subsidised family dispute resolution centres (much more affordable) for mediation. They tend to prioritise children welfare first, fair more experienced with agencies and rights compared to a highly paid private mediator ex-lawyer types.

Stick to property. There is nothing saying you need to agree, though you likely need to be seen as reasonable, then in next round of discussions, or in new consent orders, you add in parenting.