Family Mediation is also called Family Dispute Resolution (FDR)
Family Mediation or Family Dispute Resolution is an informal alternative to litigation. Since July 2007, the Family Law Act has required divorcing or separating couples with children, who are unable to resolve their parenting matters themselves, to attempt mediation before the matter can heard before the Family Court. It is a mediation process for separating couples to address their parenting issues without having to incur the cost (financial and emotional) of going through court proceedings. Separating couples can reach agreement on parenting issues and property matters. Parents in conflict can negotiate face to face about the arrangements for their future with the help of a neutral third party – a mediator in a calm and professional environment. It gives each of you a chance to talk (and listen!) to each other, as opposed to court where people speak for you (solicitors) and to you (the judge).
A counsellor or mediator facilitates communication and will help you identify and work through issues without going to court. The role of a mediator is to help you and your ex- partner discuss your issues, consider options and work out agreements that are in the best interest of your children and suit both parents. It also encourages separating couples to parent cooperatively.
Mediators do not take sides or determine the outcomes. Depending on your needs, they may offer advice or opinion but they do not tell you what to do. Unlike court or arbitration, no one imposes a solution on a party. If all of the parties do not agree to the result, the dispute remains unresolved.
Before family mediation
Before family mediation takes place your dispute will be assessed by a family dispute resolution mediator to ensure mediation is appropriate.
A provider will look at:Whether you or your children have been subject to domestic violence
- If you have been the victim of domestic violence your case will be referred straight to the Family Court. You won’t need to take part in Family dispute resolution.
- You’ll also be told what options you have.
- If you’re in immediate danger call Police.
- You or your children’s other parent or guardian may not be able to take part in family dispute resolution for example because of one of you is in prison, lives overseas or refuses to take part.
- If family dispute resolution does not proceed and you want to go to court, you'll be given a Section 60I certificate saying why mediation wasn't possible. Section 601 certificates are required before any application for Parenting Orders can be made to the Family Court.
What happens at family mediation?
Family Mediation is a structured process:
- Each parent has an initial consultation about the process
- Each parent has an interview with the mediator
- Both parents attend the mediation with the mediator
- The mediator outlines the terms of the Agreement to Participate in family dispute resolution (to set down guidelines for participation in the mediation)
- Each parent describes the issues to be resolved from their particular point of view
- From these issues, the mediator creates an agenda, listing the issues of both parties
- Each issue is discussed, as each parent states their underlying concerns
- From such concerns, options are generated by both parents
- The parents negotiate on these options
- After settlement of the issues is achieved, the mediator prepares the written agreement and presents it to each parent
Do I have to attend Family Mediation?
The Commonwealth Family Law Act 1975 requires couples with parenting issues to attend FDR and make a 'genuine effort' to resolve their issues prior to lodging a court application unless the case is urgent or involves some exceptional factors such as family violence. The Court usually requires a certificate (60I) from a family dispute resolution practitioner before a case about children can go ahead.
Family Mediation Agreements
There is no legal requirement that you formalise your agreement or even put it in writing. Formalising an agreement may, however, increase the likelihood that the agreement will be followed and may be relevant if you do need to go to Court at a later date.
The agreements reached in mediation are goodwill agreements, this means they aren't legally binding. If you both decide you would like to have the documents made legally binding you can do this by having them converted into Consent Orders which a lawyer can assist you with.
If you wish to formalise your agreement, you have the following options:Parenting agreement:
- Concerning children's care arrangements, decision-making processes and other specific issues
- Neither signed nor dated by each parent
- Not legally enforceable
- The purpose of the parenting plan (what used to be a custody agreement) is to help parents avoid future conflicts arising from vague guidelines or unstated expectations about responsibilities relating to the children.
- A lawyer, family counsellor, family dispute resolution practitioner or family consultant (“and adviser”) can help you and your ex make a parenting plan.
- Concerning children's care arrangements, decision-making processes and other specific issues. Because it is worked out and agreed jointly, you and your former partner do not need to go to court.
- A parenting plan is about your views and desires about how you would like to be involved in your children’s lives and share the responsibilities of bringing them up.
- A parenting plan puts the best interests of the child first. It is drawn up in good will with a shared commitment to your children and their future firmly in mind. Your plan will detail practical decisions about your child’s living arrangements, education, health care, emotional well-being, finances and religion.
- A parenting plan will detail how your children will keep in touch with the other parent and other important people such as grandparents, siblings or other significant others who are important to your children.
- Must be in writing, signed and dated by each parent.
- Not legally enforceable, however, the Court can consider what has been agreed in a parenting plan if you have later court proceedings dealing with parenting issues.
- A parenting plan does not cover how you intend to divide up your cash, home and assets. This is called a property settlement and you discuss these matters with a lawyer.
- A clear parenting plan is not only important for parents, it is equally important for children to know that there is a clear plan in place for them.
- This is an agreement which can be made after negotiating with the other parent, usually with the help of a lawyer or dispute resolution service.
- Concerning children's care arrangements, decision-making processes and financial arrangements such as property and maintenance.
- Must be in a specific format as part of an application to the Family Court
- Stamped by the Family Court and is binding because the Courts can be asked to enforce it. You should consider obtaining legal advice about the effect of any proposed consent orders.
Is Family Dispute Resolution confidential?
Family Dispute Resolution is confidential.
- Everything you say in front of an FDR practitioner is confidential – except in certain circumstances, such as to prevent a threat to someone's life or health or the commission of a crime.
- What is said during FDR cannot be used as evidence in court. However, an FDR mediator must report child abuse or anything that indicates a child is at risk of abuse, and this may be used as evidence in some circumstances.
What does Family Dispute Resolution or mediation cost?
Firstly, the parties share the cost of Family Dispute Resolution. FDR will only commence after the parties have signed a letter appointing the mediator. The letter of appointment will contain the hourly rate of the FDR charges, the various charges for other services, and the payment terms.
The cost of FDR depends on the provider. Private providers set their own fees. Family Relationship Centres are funded by the Australian Government and provide one hour of mediation free. Centres will charge clients earning $50,000 or more gross annual income $30 per hour for the second and third hours of mediation. Those clients who earn less than $50,000 gross annual income and those who receive Commonwealth health and social security benefits will receive the second and third hours of mediation free. Centres may also charge fees in accordance with the Centre’s fees policy if further joint sessions are required. Other FDR services funded by the Australian Government are required to have a fees policy that takes into account the capacity of the client to pay. You should let your FDR service provider know if you are on a low income or experiencing financial difficulties.
What are the advantages of Family Dispute Resolution?
- Quicker than going to court (mediation is organised according to the availability of the parents)
- Much cheaper than going to court (ongoing legal costs, filing fees, court fees, witness expenses and lawyers' fees are avoided)
- Confidential but for the exceptions (newspaper reportage, court reportage and transcription are avoided)
- In a positive and constructive environment that allows parents to fully communicate with each other (a working co-parental relationship is maintained)
- A process that allows parents – not the Judges, their lawyers, or anyone else – to make the decisions relating to their children & property (the parents are empowered by mediation)
- Conducted informally (no formal protocol or procedures of the courts occurs during mediation).
- Evidence shows that parents who engage in the court process and arbitration will damage their relationship even further.