Mediation vs court, which path fits you

My mediator was a former Family Court magistrate in a beige office above a Subway. He poured water from a jug and said, "I'm not your friend, I'm not her friend, I just don't want either of you in my old courtroom." That sentence saved me about $40,000.

We settled in a day and a half. Not happily. Settled.

A mate of mine took the other path. Eighteen months, three barristers, four interim hearings, two psychologists, one private investigator (don't ask). His final orders looked almost identical to what mediation would have given him in week three. He'd just paid a house deposit to find out.

Both paths exist for a reason. Most blokes pick the wrong one.

What mediation actually is

Family Dispute Resolution (FDR) is the formal name in Australia. A neutral third party sits between you and your ex, walks you through the issues, drafts the agreement. They don't decide anything. They help you decide.

For parenting matters, mediation is mandatory before you can file, unless there's family violence, urgency, or one of you won't engage. You'll get a section 60I certificate either way (settled, didn't settle, wasn't appropriate). That certificate is your court ticket if mediation fails.

For property, mediation isn't legally required. It's just stupid not to try.

The session itself: a few hours up to a full day. Sometimes shuttle (you're in separate rooms, the mediator walks between you), sometimes face-to-face, sometimes a mix. Costs $3,000 to $8,000 split between you. Some community FDR services are free or low-cost. Relationships Australia is a good starting point.

What court actually is

Court is what happens when mediation either fails or wasn't appropriate. You file an Initiating Application. Then there's a directions hearing. Then there might be interim orders (who lives where, who pays what, in the meantime). Then disclosure. Then maybe a settlement conference. Then a trial.

Trials in the Federal Circuit and Family Court routinely take 12 to 24 months from filing. Some take longer. You'll have a barrister briefed for hearings ($5,000 to $15,000 a day, plus prep), a solicitor running the file, expert witnesses for the property pool. The judge decides. You wear the result.

Worth saying clearly: judges don't split things 50/50 by default. The s79 four-step process (identify the pool, assess contributions, assess future needs, decide what's just and equitable) is the framework. Outcomes are rarely the round number you imagined.

When mediation is right

• You both still talk, even badly. A "civil" relationship isn't required. A functional one is.
• The asset pool is roughly knowable. House, super, savings, maybe a car. No hidden trusts, no offshore anything.
• Neither of you is using the kids as a weapon.
• There's no family violence (the screening tools FDR practitioners use will catch this anyway).
• You both want it done.

If three of those five are true, try mediation first. Worst case you spend $5k and learn what you actually disagree about. That's $5k well spent even if you end up in court anyway, because the issues narrow.

When court is unavoidable

• Family violence, coercive control, or a serious safety issue. The system has to step in. Don't try to mediate your way through this.
• Asset hiding. If she (or you) genuinely won't disclose, court has subpoena power. Mediation has nothing.
• One party simply won't engage. Mediation requires two willing humans. If she won't show up, you'll get the s60I certificate and you'll file.
• Urgent issues. Child at risk, asset being dissipated, someone moving overseas with the kids.
• A point of law that needs deciding, e.g. a binding financial agreement is being challenged.

If any of those apply, court isn't a failure. Court is the appropriate venue.

The hybrid most people miss

You can mediate, agree on most things, court the rest. You can mediate, settle, then file consent orders so the agreement is binding. You can start court, then mediate before trial (judges actively push you towards this, often via a court-ordered conciliation conference).

Most resolved Australian property matters never see a final hearing. Around 95% settle before a judgment. The question isn't really "mediation OR court". It's "how much court do I need to buy".

Buy as little as possible.

The numbers, side by side

• Mediation, settled, consent orders filed: $5k to $15k each, 3 to 6 months.
• Lawyer-led negotiation, no court: $20k to $30k each, 6 to 12 months.
• Court started, settled before trial: $40k to $80k each, 9 to 18 months.
• Full hearing, judgment: $80k+ each, 12 to 24+ months.

Time is the line on that table that nobody emphasises enough. Court is two years of your life on hold. Two birthdays of the kids you spent in conflict. Two Christmases you negotiated by email through solicitors.

How to choose, honestly

Sit down and answer three questions. Write them down.

• Can I and my ex be in the same building, with a third party, for a day, without it falling apart?
• Do I know, within 10%, what's in the pool?
• Am I prepared to give a bit more than feels fair to be done a year sooner?

Three yeses: mediate.

Two yeses: mediate with a lawyer in your corner reviewing each step.

Fewer than two: get a family lawyer in for a fixed-fee strategy consult and let them tell you the truth about your options. Sometimes that truth is "court". Most of the time it's "mediate harder".

The bloke who told me his story above (eighteen months, three barristers) said the same thing I'm saying: he wishes he'd swallowed his pride in week one.

Cheap, fast, fair. Pick two.