Family Dispute Resolution (FDR) is a form of Alternative Dispute Resolution (mediation). Mediation is used at all levels of society to resolve conflict and disputes. You may have heard of The Dispute Settlement Centre, for example, which helps people resolve issues arising from neighbourhood disagreements for example. The goal of FDR, however, is to help separating couples reach their agreements in relation to family law matters without using the family law court system.
FDR is conducted by Family Dispute Resolution practitioners (FDRPs), who are accredited mediators specialising in Family Law. Many also have tertiary qualifications in complementary disciplines, such as psychology or law, or have experience working in the Justice System. Practitioners are registered with the Attorney General’s Office of Australia. In addition, many experienced practitioners have undertaken specialist postgraduate training in Conflict Management and Early Childhood Development and are accredited via the National Mediator Accreditation System - NMAS.
The Federal Circuit and Family Courts of Australia require separating couples to go to family dispute resolution prior to initiating court proceedings in both children’s and financial matters. FDR enables separating couples to engage in a process that provides a practical, non-adversarial approach to resolving Family Law disputes. This can include, but is not limited to, parenting arrangements (custody) for children and financial and property settlements. Formalising a separation agreement, resolving a will or estate dispute or any family law issue that would benefit from neutral third-party facilitation of the negotiations.
In the family dispute resolution process, the FDR Mediator assumes a crucial role. They act as a neutral, impartial third party, not representing either client in the dispute. However, they are required to actively advocate for the best interests of any children impacted by the separation.
It's important to note that FDRPs do not give legal advice, take sides, make rulings, or determine the outcome of the dispute. They can facilitate discussions, provide information and offer alternative solutions to parenting arrangements and other family law matters. In addition to providing information, they also provide support and guidance. Assisting the parties in negotiating and communicating with each other more effectively. The ultimate goal is to foster a healthy co-parenting relationship, ensuring the best possible outcome for all parties involved, especially the children of the relationship.
Use family dispute resolution.
FDR is a process based on non-adversarial communication and negotiation. It aims to help parties reach an agreement without the need for court intervention and often with minimal input from solicitors. It involves specific methods and techniques designed to facilitate productive discussions and constructive problem-solving. These may include active listening, reframing issues, managing emotions, exploring underlying interests, and generating creative solutions. FDR practitioners are trained mediators who guide the process, taking the place of two solicitors and helping parties identify their common goals and interests.
This may involve overcoming emotional difficulties and shifting the motivation to move forward using a child-focused, non-adversarial lens. The aim of family dispute resolution is to explore all the available options and encourage the parties to focus on ways to achieve their desired goals without going to court.
In FDR, the process is designed for clients, not the court system or lawyers. The mediator provides support and information about the Australian Family Law Act. This way each party can make informed decisions about their concerns and issues. The goal is to reach an agreement that is acceptable to both sides, and that complies with the Family Law Act.
The mediator encourages each party to state their point of view in a safe and managed way. They further provide information and guidance so that each party has the tools needed to have those conversations. FDRPs do not act as Judges, and they make no rulings; instead, they encourage the parties to make their own agreements.
Agreements reached in this way are more likely to be adhered to. At Bayside Mediation, we provide a safe, supported space at our family relationship centre. Here, separating couples can have difficult conversations. Those conversations can also be managed via videoconferencing or shuttle mediation, where the parties are in separate rooms.
Importantly, Family Dispute Resolution is entirely confidential. Thus, it is an opportunity to have your story heard without the worry of having the information weaponised against you in any way. FDR is also offered through family relationship centres and can also include discussions on legal aid options for those who qualify.
FDR mediators are also impartial and do not take sides. Taking sides is what lawyers are required to do; FDR is a non-adversarial option. However, in accordance with the recent changes to the Family Law Act, we are required to advocate for the best interests of the children in the relationship. An important exception to confidentiality is any admissions made relating to children being at risk. It is important to know we’re mandatory reporters. With this exception, nothing said in Family Dispute Resolution can be used as evidence in court.
Your family resolution practitioner:
The Attorney General's Department once required that only those people who had a prerequisite degree in either law, psychology or social work were eligible to receive a Graduate Diploma in Family Dispute Resolution. These days, there is no such requirement. As such there are many FDR practitioners currently practising who do not have a tertiary qualification.
All the practitioners at Bayside Mediation have tertiary qualifications. Ensuring that you are being guided through this challenging life transition by an accredited Family Dispute Resolution practitioner with the qualifications and life skills needed to be effective and to help.
It is important to reiterate that an FDR practitioner is an independent person who helps parties come to an agreement. This individual is trained to facilitate communication and assist in resolving disputes in a fair and impartial manner. The FDR practitioner does not take sides or make decisions for the people involved. Instead, he/she supports them in finding their own mutually acceptable solutions.
Cost of family dispute resolution:
1. There are three primary providers of Family Dispute Resolution Services: government-funded providers, lawyers/barristers, and private practitioners. The government-funded services charge a sliding scale depending on the client’s income, and these fees can range from $0 to approximately $300 per hour. Lawyers/barristers often charge their usual fee, and private FDR mediators generally charge an hourly fee per client.
2. Family dispute resolution is charged to both clients, i.e., an amount per hour per client, even when you are both present.
3. Private practitioner fees vary depending on the skill level, qualifications, and experience of the FDR Mediator
4. Non-lawyer FDR Mediators generally charge considerably less than lawyers, even those lawyers acting in the capacity of a mediator. It is generally accepted that family dispute resolution will cost clients many thousands of dollars less than engaging a solicitor or going to Court.
5. Private family dispute resolution will generally conclude a matter within weeks. Whereas engaging a government organisation or solicitors can mean a matter will take months and, in many cases, years to conclude.
6. There is also the emotional cost of not meditating. Months or years of fighting your former partner in court can take a heavy toll on you and your children. This is why many opt to try family dispute resolution first.
How family dispute resolution works.
- Family dispute resolution is confidential. Your FDR Mediator cannot discuss any part of your story with anyone without your permission. This includes your solicitor, your former partner, or the tax department.
- FDR Mediators cannot be called to give evidence on your behalf and do not advocate for you.
- Your FDR mediator is impartial. Even though one party to the dispute initiates family dispute resolution, the FDR mediator does not act for either party.
- FDR Mediators are required by law to act in the best interest of any children in the relationship.
- The FDR mediator issues the 60(I) Certificate, which allows a matter to proceed to Court.
- The FDR mediator will indicate on the 60(I) certificate whether both parties made a genuine effort to resolve the dispute. If one party refuses to attend family dispute resolution, a cost order is to be made on the non-compliant party.
- The Family Law Act provides for costs to be awarded if a person does not make a genuine effort or refuses to attend.
- Any document produced through family dispute resolution can be formalised into a Binding Financial Agreement or Consent Orders.
- A signed recent Parenting Plan may overrule an existing Court Order in some circumstances and can be used to amend or review existing orders.
- Such a plan may also be produced as evidence in court and relied upon as the basis for future orders, including parenting orders.
- Any information (other than the Parenting Plan) obtained through family dispute resolution cannot be used in Court proceedings.
- Clients are legally required to attend Family Dispute Resolution, and a letter can be provided for employers.
- Clients with existing Intervention Orders (in Victoria) can generally attend family dispute resolution
What happens after dispute resolution
After a Parenting Plan has been negotiated through mediation, it is important for all parties involved to continue communicating and working towards rebuilding trust and understanding. Establishing clear boundaries and guidelines for future conflicts and developing a plan for how to address any future disagreements in a respectful and constructive manner may be helpful. This may include scheduling a review of your existing Parenting Plan; family mediation is not a once-off process. FDR can be an ongoing part of your family's dispute-resolution process.
It may also be beneficial to seek ongoing support or family counselling to help process any lingering emotions or to address any underlying issues that may have contributed to the dispute. It is important to remember that conflicts are a normal part of family dynamics. By learning how to effectively address and resolve them, relationships can be strengthened, and family bonds can be preserved.
If your agreement concerns a financial settlement, it will need to be accepted and formalised by the FCFCOA to be made legally binding. There are two ways to formalise an agreement reached regarding financial matters: Consent Orders or a Binding Financial Agreement. Your FDR mediator will be able to guide you as to which process is best for you.
What if family dispute resolution is unsuccessful
When family dispute resolution doesn’t yield a satisfactory resolution, your dispute resolution practitioner can give you a 60(I) certificate. This certificate enables you to initiate court proceedings in the Federal Circuit and Family Courts of Australia.
However, there are other options available to families to try and resolve their disputes without going through the court process. This can include seeking support from family relationships online resources and contacting the family relationship advice line. Or attending parenting and or family violence training and support groups. You can also try Family Group Conferencing and Parental Coordination.
For Aboriginal and Torres strait islander families, a specific type of mediation may be required, such as Group Family Conferencing. It’s important to explore all avenues before resorting to litigation.
For families experiencing domestic and family violence, it’s crucial to seek support from specialised services to ensure everyone's safety and well-being. Most states allow for mediation under the Family Law Act to help parents resolve parenting contact issues. Even where a Family Violence Order or Domestic Violence Order has been issued.
In the state of Victoria, a mediated parenting plan can override child access restrictions listed on an IVO (Intervention Order). It’s important to remember that dispute resolution may not always be successful. Yet, there is an obligation to try FDR before taking your matter to court. It is your FDR mediator who is required by law to determine if it is suitable or not.
Dispute resolution is not appropriate when
Family Dispute Resolution, or any form of negotiation, may not be suitable in matters involving extreme family violence. To what extent it is not suitable, it is often at the discretion of the party involved, in consultation with your mediator.
FDR mediators are required to provide a safe and managed space for separated couples to conduct difficult conversations. If the space or type of mediation offered is what a person needs to feel safe and supported. Eg. such as video conferencing or shuttle mediation. Then, it can proceed.
However, it may not be appropriate when there are mental health issues or any situation where a person is not in a position to make informed decisions. Your mediator will conduct a comprehensive intake interview with both parties. Then, help determine if it is suitable or not at the beginning of the FDR service.
Find a family dispute resolution practitioner.
If you wish to speak to a qualified FDR mediator about your situation. Or would like to obtain information about family dispute resolution, please do not hesitate to phone Bayside Mediation on 03 9553 6491.
