Home » Mediation & Family Dispute Resolution
Mediation & Family Dispute Resolution
Mediation is a form of Alternative Dispute Resolution, which is a way of resolving disputes between two or more parties without going through the legal system. The process of doing mediation in family law is known as “Family Dispute Resolution”. A practitioner who undertakes this work is known as a Family Dispute Resolution practitioner (FDRP)
Typically, a Mediator assists both parties to work together to reach a shared agreement. Unlike the legal process, a resolution is not made by a Magistrate and imposed on one or both parties. If the parties involved do not agree on a shared outcome, the dispute remains unresolved.
The role of the Mediator is not to pass judgment or to give legal advice. They act as a neutral third party who facilitates, rather than direct, open discussion.
The basics steps of FDR are:
- One party contacts the mediator;
- An invitation is sent to the other party to participate;
- Upon acceptance an “intake” is conducted to determine the suitability of Mediation;
- If suitable a mediation date is set;
- Mediation occurs;
- Any agreement reached is drawn up by a lawyer to be formalised.
Mediation is a highly beneficial form of alternative dispute resolution.
What is Family Dispute Resolution?
Family Dispute Resolution is the term used to describe mediation services that are specifically designed to assist couples and families affected by separation and divorce. The sessions are tailored to facilitate calm discussions around, and solutions to, family disputes.
Why Family Dispute Resolution?
Separated families who have a dispute about parenting arrangements, such as children’s matters or property matters, are required by law to make a genuine effort to resolve the dispute through Family Dispute Resolution.
Family Dispute Resolution can be provided by most Mediators, however only accredited Family Dispute Resolution Practitioners can issue certificates under the Family Law Act 1975. These Mediators are specifically accredited by the Attorney General’s Department and meet the standards of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.
We recommend The Mediation Centre for your Mediation and Family Dispute Resolution needs.
At ALA law we explain this by saying – What happens at mediation – stays at mediation!
Communications in the course of dispute resolution is, except in certain circumstances, confidential and inadmissible in any court. This means anything said at mediation, any offers made cannot be used against you if the matter fails to settle.
Obviously, if you reach an agreement, that is not confidential as it will be formalised into a legally binding document.
The FDRP is a mandatory reporter, so like Dr or a Teacher if there is child welfare concerns, they are required to report that by law and the confidentiality does not exist in relation to those risk issues.
Family Dispute Resolution for children’s matter is compulsory. After attending FDR you will be a issued a s.60I certificate which will allow you to commence proceedings if you are unable to reach settlement.
For other forms of mediation, it is not compulsory to attend prior to commencing court proceedings (e.g. property or divorce)
The Family Law Act requires that parents attend FDR to discuss children’s arrangements prior to commencing court proceedings. A s.60I Certificate will then be issued by the FDRP, and the certificate is then filed with an application with the FCFCOA to commence court proceedings.
The types of s60I certificates, which may be issued by a Family Dispute Resolution Practitioner (mediators approved by the Federal Attorney-General), are:
- you did not attend because the other party refused or failed to attend;
- you did not attend because the practitioner (mediator) considered that your circumstances were not appropriate for Family Dispute Resolution;
- you did not attend and the parties did not make a genuine effort to resolve the issues; or
- you did attend and the other party (or you) did not make a genuine effort to resolve issues; or
- that the matter is not appropriate for FDR.
Yes – mediation is effective!
It is the only environment that allows parties to freely negotiate without fear that what is said in mediation and offers that are made in the environment of compromise can be used at a later date against that party.
This means in family law matters that settlement is highly likely to occur as the parties can speak freely, openly and be clear in their intentions, position and willingness to negotiate a settlement.
It is also supported and facilitated by a Mediator who is a neutral third party who is trained to assist parties to come to a peaceful resolution and settlement.
It is now mandatory to undertake mediation during Court proceedings (known as “In-Litigation Mediation”).
For in-litigation mediation, the FDRP must complete the prescribed Certificate of Dispute Resolution which will indicate whether:
- the matter has resolved in whole or in part
- the parties attended, and
- the parties made a genuine effort to resolve issues.
That certificate must be provided to the Court.
Once you reach an agreement that will be formalised by:
- If the matter isn’t in court:
o Consent Orders for property/children or property and children; or
o A Parenting Plan (if appropriate)
- If the matter is in court then it will be finalised by way of “Terms of Settlement” and then made into Orders by your Judge.
Let the team at ALA Law guide you through the process of reaching an agreement including providing you with the advice you need to know to reach an agreement and arranging and attending FDR with you.
Give us a call to see how we can help you.