FAQ Family Mediation

FREQUENTLY ASKED QUESTIONS

What is Family Dispute Resolution?

Family Dispute Resolution is mediation under the Family Law Act 1975 (Cth). It is a process through which parents can reach agreement on parenting issues and property matters.

What is the Family Dispute Resolution 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

What happens at the mediation?

The mediator outlines the terms of the Agreement to Participate in Family Dispute Resolution (this sets down guidelines for participation in the mediation)
Each parent, in turn, describes the issues to be resolved from their particular point of view
From the issues, the mediator creates an agenda (a list of the issues of both parents that sets the boundaries of the mediation)
Each issue is discussed, as each parent, in turn, states their underlying concerns
From such concerns, options are generated by both parents (assisted by the mediator)
The parents negotiate about these options
When settlement of the issues is achieved, the mediator prepares the written agreement and presents it to each parent

Is Family Dispute Resolution confidential?

Family Dispute Resolution is confidential. However, there are exceptions, which include:

Where a law requires the mediator to report certain information, such as any child abuse
Where the mediator believes it is necessary to disclose the information to prevent serious bodily injury or death

Is Family Dispute Resolution compulsory?

Parents who have newly separated and who want to resolve parenting and property disputes are required to attend Family Dispute Resolution. This also applies for parents who wish to apply to the Family Court for Parenting Orders or changes to existing Parenting Orders. However, there are exceptions, which include:

When applying for Consent Orders (where both parents already agree on parenting and property matters)
When responding to an application
When the matter is urgent (which is determined by the Family Court)
Where there has been or there exists a risk of family violence or child abuse
Where a parent cannot effectively participate in Family Dispute Resolution due to an incapacity or other reason
Where a party has contravened or has shown a serious disregard for a court order made in the last 12 months

Who attends Family Dispute Resolution?

Parents who are in disagreement about parenting and property matters attend Family Dispute Resolution. Parents can have present in the mediation a support person or legal representatives, provided that the mediator has been advised of this with at least 7 days' notice, so that the other parent has an opportunity to do the same.

Are the children involved?

Children are not involved in Family Dispute Resolution.

What is child-inclusive mediation?

Where the mediator has decided that it is appropriate, child-inclusive mediation can take place. This is where the children speak with a child consultant, who determines how the children have been coping with the separation and current parenting arrangements. This information is then provided to the parents during the mediation to help them in creating new parenting arrangements for the future.

For child-inclusive mediation, children must be at least 6 years old.

Do I need a certificate?

Parents will need a section 60I certificate if they wish to apply to the Family Court for new Parenting Orders or changes to current Parenting Orders. However, if parents are already in agreement about parenting matters, they can simply apply for Consent Orders without needing a certificate.

How should I prepare for Family Dispute Resolution?

Before attending the mediation session, each parent should:

Identify the relevant issues to be discussed and resolved at mediation
Consider their underlying concerns in relation to each issue
Seek independent legal advice of the likely outcome of going to court for each issue
Consider numerous options for each issue
Seek independent expert advice for any particular issues, such as guidelines of appropriate care arrangements for children according to their ages and developmental stages

How should I choose a mediator?

Parents should consider the mediator's:

Experience in mediation, specifically in mediation of similar disputes to the dispute to be mediated (such as children's care arrangements)
Expertise in the area of law from which the dispute arises (particularly Family Law)
Training and any other credentials in Family Dispute Resolution
Education and professional background, in facilitating the generation of options to the issues
Reputation for neutrality, competency and professionalism
Location in an area convenient to the parents

What are the advantages of Family Dispute Resolution?

Family Dispute Resolution is:

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)

When may Family Dispute Resolution not be appropriate?

Family Dispute Resolution may not be appropriate where:

There is a history of intimidation, violence or acrimony between the parents
There is an imbalance of power between the parents, so that one parent cannot effectively participate in their own best interests
There are allegations of child abuse
The matter is urgent (which is determined by the Family Court)

By Francois Mercier