In this information sheet we explain the process of mediation for family law matters including who attends, what happens at a mediation and who may be exempt from participating.
Mediation is a process used to resolve disputes in an alternative way from receiving a decision by a judge. An independent person, known as the mediator, acts as a neutral facilitator in helping parties resolve their dispute and come to an agreement which is suitable for them. Family Dispute Resolution is a type of mediation used in family law that helps parties come to their own agreement following separation, or a breakdown in the co-parenting relationship. The aim of FDR is to assist parties in reaching an agreement regarding arrangements for their children.
Aside from the mediator themselves, all parties involved in the matter will attend the mediation. All parties are in control of the decision reached in order to resolve their dispute. Parties should attend the mediation prepared with sufficient knowledge of the issues involved in the dispute. For this reason it is best that each party obtains independent legal advice from a family lawyer first, and that the family lawyers who provided advice to the parties also attend the mediation.
An individual can approach a mediator directly and ask them to organise a mediation between themselves and their ex-partner. Parties could approach a private mediator (who will charge a fee, generally a fixed fee or by the hour) or they could approach a Government service who provides family dispute resolution. If lawyers are involved in the process prior to mediation being organised, the lawyers will contact the mediator for you. Once the mediation service has been contacted, they will organise the mediation and advise the parties of the details for attendance (date, time, location etc).
The process for mediation differs with different mediation providers, however generally mediation will start with the mediator providing an explanation of the process, and each party, or their lawyers, giving a statement as to what has been happening for the children, and what they (or their client) hopes to achieve at mediation. The mediator then might compile a list of topics to be discussed in the mediation, such as parental responsibility, time with each parent, changeover etc.
Mediation can occur in person, with all parties and lawyers in the same room with the mediator, by telephone, or by way of shuttle (where each party and their lawyer are in separate rooms or on separate phone lines and the mediator goes between the two). How mediation is conducted will depend on the individual preferences of each party, the recommendations of their lawyers and an assessment by the mediator as to what method is most appropriate.
Once an explanation of the mediation process has been given and each party has given an opening statement the mediator will start asking parties to make proposals for a settlement. Once each aspect in dispute is decided the mediator or a lawyer will record the decision. If after some time the parties have not reached a decision the mediator will generally have private sessions with each party, which are completely confidential, and then resume the joint session for further proposals to be made.
If an agreement has been reached the mediator or the lawyers will draft either a Parenting Plan or Consent Orders, reflecting the agreement. Each party must read and sign these documents. Once a Parenting Plan is signed it is in place and operative and parties should comply with it, unless they later agree to different arrangements.
Once Consent Orders are signed they are filed with the Court. The Registrar of the Court will review these Orders and if they are satisfied that the Orders are in the children’s best interests, they will make the Orders. From the date the Court makes the Orders they are in place and operative and parties should comply with them, unless they later agree to different arrangements.
If agreement is unable to be reached, the mediator will issue each party with a certificate known as a Section 60i Certificate which will allow parties to commence proceedings in the Federal Circuit Court or Family Court seeking Parenting Orders.
No one can be forced to go to mediation if they don’t want to. However, the law generally requires parties to attempt mediation prior to commencing Court proceedings. To commence Court proceedings in parenting matters you need to file a Section 60i Certificate or qualify for an exemption to the requirement to attend mediation. You will only be able to obtain a Section 60i Certificate if you have attended mediation and it was unsuccessful or you tried to attend mediation but the matter was assessed as unsuitable for mediation by the mediator.
Many matters settle at mediation. Even if you think there are limited prospects of your matter settling, unless your lawyer has advised you that mediation is not appropriate in your matter, you should consider the option of mediation. One main benefit to mediation is that the matter will conclude much quicker through mediation than if it proceeds to Court. Some matters can be in the Court system for three years consecutively (sometimes even more) before they finalise. Mediation on the other hand, could see a resolution come about in a matter of only a couple of months.
Additionally mediation is significantly cheaper than Court. Whilst Court could cost tens of thousands of dollars, mediation will generally cost less than $4,000 inclusive of all costs. The main benefit to mediation however, is that it is you and your ex-partner, the people who know your children the best, are in control of the outcome, not a Judge.
A party may be exempt from participating in compulsory FDR. These exemptions include:
– Where family violence or child abuse has occurred;
– There is a nature of urgency in your matter (for instance if you are the primary carer of the children and the other party has removed them);
– If the children are at risk of immediate and significant harm in the other party’s care;
– If there is an immediate risk of a child being relocated or taken overseas;
– A person is unable to participate effectively in mediation e.g. geographical restraint, incapacity, unknown contact details to invite them to mediation;
– A person has contravened and shown serious disregard for a court order made in the last 12 months.
Mediation isn’t for everyone, but for a lot of people, it is the best way to resolve what may seem like the unresolvable. However, sometimes mediation just isn’t appropriate. This is particularly the case in circumstances of family violence and child abuse. Before proceeding to organise mediation, or agreeing to mediation, it is really important to obtain legal advice from a family lawyer. If you have questions about mediation, contact our family law associate, Emily Ostler, today on 4050 0330 or book online.