Family law issues are often emotional and difficult. They often leave family members feeling frustrated, overwhelmed, and unable to resolve the situation on their own. Family Dispute Resolution (FDR) Mediation is a valuable tool in helping separated families navigate difficult situations in a constructive and dignified manner.
In this guide, we will explore the principles and processes of FDR Mediation. We will outline how it can effectively address conflicts within families and promote positive communication and understanding. FDR Mediation may provide a safe and neutral space for all parties involved to express their concerns, listen to each other's perspectives, and work towards finding mutually agreeable solutions.
By understanding the benefits and procedures of this process, families can move towards settling their conflicts in a collaborative and respectful manner, ultimately fostering stronger relationships and long-term stability.
Starting the mediation process:
You may contact Bayside Mediation to learn about the legal aid services offered, discuss your specific situation with one of our experienced and accredited Family Dispute Resolution practitioners, and make an appointment for your intake interview.
The Family Law Act requires one party to the separation to initiate mediation. The mediator then invites the other party into the process. You don't have to have your former partner's agreement when choosing your negotiator.
Family Mediation Intake Interview:
Intake and Assessment
The first stage of the process involves gathering information about the parties involved in the dispute, assessing the nature and complexity of the issues in dispute, and determining the appropriate approach to negotiate the conflict.
The mediator you contact at Bayside Mediation will work with you to complete your matter. Each party must meet with the intermediary individually before booking a joint session.
During this intake interview, the arbitrator will listen to your side of the story and will help you clarify the issues in dispute and the steps you need to take to develop possible solutions. This may include:
- Go through the history of the relationship to help the mediator assess whether the FDR process is safe and appropriate.
- Provide you with information on the process and explain the relevant family law principles that will impact your decisions.
- Help you to make a to-do list to prepare for mediation adequately.
- Suggest appropriate referrals for emotional support, legal advice, counselling, income support or other assistance.
Education and Preparation
In this stage, the parties are provided with information about the FDR process, their rights and responsibilities, and the options available to them for resolving their dispute. Both parties are encouraged to engage in individual or joint preparation to ensure they are fully informed and ready to participate effectively in the process.
After your intake interview, the intermediary will contact the other party and invite them to join the process. Mediation is mandatory for all children’s and financial matters (with some exceptions related to safety). Should a party refuse to attend or not make a genuine effort in mediation, the in-between may issue an s60(I) certificate, which allows you to commence Court proceedings.
You can use a s60I Certificate stating non-attendance or non-genuine effort to seek a costs order against your ex. Only practitioners registered with the Attorney General's Office can issue s60I certificates. So, make sure that you choose a registered intermediary, in case your mediation fails.
First Session
Facilitated Negotiation: The core of the process involves facilitated negotiations between the parties, with the assistance of a neutral third party (such as a mediator or counsellor). The facilitator helps the parties clarify their interests, communicate effectively, and work towards reaching a mutually acceptable understanding.
At the first session, the mediator:
- explains the rules, such as confidentiality requirements, speaking respectfully, not interrupting each other, etc.
- encourages you to consider each other's point of view, help you explore options and reality test whether these options are workable or realistic.
- encourages you to focus on your child in all negotiations and help you work out an agreement that takes into account everybody's needs
- may also call a private session at any time. You may be in the same room the entire session, or you may ask to have private time with the mediator at any stage of the process.
- works with you to produce a parenting plan and/or, in principle, financial agreement regarding your assets and liabilities.
Bayside Mediation can also help to make your settlement legally binding.
Subsequent Sessions:
Many government-funded mediation services only offer 2-hour FDR sessions, so it is highly likely that you will need more than one session to settle all your issues.
Bayside Mediation offers sessions of up to four hours in duration and works to facilitate your dispute as quickly as possible. However, it is not unusual for a mediated agreement to take more than one session to complete. Especially so if we are dealing with both children’s matters and financial matters after separation and divorce. Parenting matters are usually dealt with first.
Agreement and Implementation
If the parties reach a resolution through negotiation, the parties formalise and sign a written contract. The parties are then supported in implementing the settlement and addressing any issues arising during the implementation process.
Parenting Plans:
Once you have reached an agreement regarding parenting matters in mediation, you should have a signed and dated understanding, which will constitute your Parenting Plan.
Whilst not legally binding, an existing signed plan may be produced as evidence of the parties’ intention at the time they entered into it. Judges and registrars often consider such plans in any future parenting orders they make.
Agreements and Consent or Family Court Orders:
Parenting agreements reached in conflict resolution are not legally binding. They are similar to a ‘Heads of Agreement’ produced by lawyers. However, both parties honour over 85% of FDR-mediated contracts. If required, Consent Orders through the Federal Circuit and Family Court of Australia formalise agreements reached in mediation (both parenting and financial). If either party breaches their Consent Orders, court proceedings can be instituted to enforce them.
60(I) Certificates in mediation:
If the parties cannot reach an agreement, the FDR Practitioner may issue the s60(I) certificate, which allows the matter to proceed to a court case.
The FDRP must indicate why the certificate was issued. This can be for a variety of reasons, including if a party refuses to attend mediation or does attend but does not make an effort to resolve disputes. A judge can order the matter back to mediation or award costs to the party who did not act in good faith.
Review and Follow-Up:
After implementing the agreement, the parties have the opportunity to review its effectiveness and address any lingering issues or concerns. Follow-up sessions may be scheduled to ensure that the agreement remains viable over time.
Overall, the goal of dispute resolution is to empower the parties to mediate their conflicts constructively and cooperatively, while also preserving important relationships and minimising the negative impact of the dispute on all involved.
What happens if Family Dispute Resolution services are unsuccessful?
FDR is a crucial step in settling conflicts within families before resorting to legal action. If it is unsuccessful, parties may need to apply to the court for a resolution. In case of family violence, parties may skip the process and go directly to the family law court for parenting orders.
However, if parties have not made a genuine effort to resolve the dispute through FDR, they will need to obtain a Section 60i certificate before applying to the court. Organisations like Relationships Australia NSW provide accredited services to help families resolve their family law disputes through mediation or FDR.
It's important to remember that not all disputes can be resolved outside the court. It's normal to feel overwhelmed during the resolution process.
How do I find a practitioner?
Practitioners can assist in resolving family conflicts and disputes without going to court. If you are in Australia, you can find an accredited practitioner by contacting your local family relationship centre or Family Relationships Australia NSW. These centres offer services and can help you navigate the Australian family law system.
The practitioner will work with you to resolve the dispute and may provide a section 60i certificate if you make a genuine effort to resolve the issue. If mediation or FDR fails, you may need to apply for court for parenting orders. It's important to remember that family law court takes family violence seriouslyt. The safety of all involved parties is a top priority.
Family problems often arise due to a relationship breakdown and can be emotionally taxing for all involved. Mediation for helping separated couples and families can be a useful tool to come to an agreement. Working with an accredited practitioner can help you achieve a resolution that is fair and just for everyone.
Remember, Australia requires you to attend FDR before applying to a family law court. This is a special type of mediation designed to help families resolve disagreements in a peaceful and amicable way.
Contact us
If you have any enquiries or wish to speak to a qualified FDR mediator about your situation, do not hesitate to phone Bayside Mediation on 03 9553 6491.
