Mediation and Alternative Dispute Resolution in Family Law

What is Mediation?

Mediation is a form of Alternative Dispute Resolution (ADR) that involves an unbiased third party, known as a mediator, to help resolve conflicts between parties in dispute. It can be done voluntarily or as required by a court order. A mediator supports those in disagreement to come to a mutual agreement.

What Should I Know About the Mediation Process?

Parties involved in the dispute are encouraged to communicate directly with each other during the mediation session.

Mediation can be conducted in person or via a web conference (such as Teams or Zoom). In some cases, the parties might prefer to stay in separate rooms, with the mediator facilitating communication between them. This approach is known as “shuttle mediation”.

Discussions in mediation are confidential, promoting a more open exchange of views and proposals.

Mediation is formal and structured. Each party will be given a break to reflect on the discussions and to seek advice from a lawyer, if needed.

What role does the mediator play during a mediation session?

The mediator is neutral and independent.

Unlike a judge in a court case, the mediator doesn’t dictate what each party should do or impose a decision on anyone.

Instead, the mediator clarifies the mediation process and guides the parties on how it will work.

At the beginning, the mediator often asks each party to make an opening statement and share their viewpoints. Throughout the mediation, the mediator listens to the issues and actively directs the discussion towards resolving the conflict.

They ask questions to help participants identify their goals and clarify the disputed matters.

The mediator helps the parties explore options and consider practical solutions.

The main aim is to assist the parties in reaching a mutually acceptable agreement and ensuring that everyone understands the terms of the agreement.

Occasionally, mediators may connect participants with other useful services, such as those related to children, mental health, or financial counselling.

Why Should I Think About Mediation?

Mediation isn’t suitable for every dispute. In some cases, one party might feel intimidated or unsafe interacting with the other. There could also be a significant power imbalance, where one side might struggle to negotiate or communicate their position effectively.

If you’re unsure, it’s a good idea to consult with a lawyer or mediator to explore your options.

Mediation works best for those who are comfortable talking with the other parties involved. If you’re generally amicable and seek a genuine, timely resolution, mediation could be a good fit for you.

It’s an appropriate choice if you want to keep control over the outcome, ensure confidentiality, and foster positive ongoing relationships. Mediation is also beneficial when parties are looking for creative solutions to problems.

With mediation, your privacy is respected, it’s usually voluntary, more affordable, and far less formal than going to court.

What is Family Dispute Resolution (FDR)?

Family Dispute Resolution (FDR) is a specialised form of mediation led by a Family Dispute Resolution Practitioner (FDRP).

An FDRP is an independent expert who helps individuals affected by separation to discuss and settle their parenting or property disputes.

FDRPs play a vital role in assisting families to reach agreements and address the complex issues surrounding children, finances, and property when marriages or long-term relationships end. Family dispute resolution is usually conducted in a non-confrontational setting, with a focus on the needs of the children involved.

Section 60I Certificates and Parenting Orders

A Section 60I Certificate, issued under Section 60I of the Family Law Act 1975 in Australia, is a crucial document in family law matters, especially when there is a dispute over parenting arrangements.

Before commencing legal proceedings for parenting orders, individuals are generally required to first attempt Family Dispute Resolution (FDR).

The Section 60I Certificate confirms that a mediation attempt has occurred. It may indicate whether mediation was attempted by one or both parties and whether it was successful in resolving the dispute.

If the other party refuses to attend mediation in a parenting matter, the FDRP can still issue a Section 60I Certificate, which is typically valid for 12 months. This Certificate allows parties to apply to the Court for parenting orders, and the Court may order further mediation if necessary.

There are some exceptions to the requirement for a Section 60I Certificate, particularly in cases involving child abuse, family violence, or other reasonable grounds. However, in most situations, obtaining a Section 60I Certificate is a necessary step in the family law process when parties cannot reach an agreement on parenting arrangements.

Is Mediation Mandatory?

Recent changes to Court Rules now require parties to take “genuine steps” to resolve their issues before initiating both financial and parenting proceedings. These “genuine steps” might include voluntary mediation led by an accredited FDRP.

To comply with this requirement, anyone commencing a court case must submit a “Genuine Steps Certificate” alongside their court application. This allows the Court to verify that they have made an effort to resolve the dispute outside of court.

Certified Mediator and FDRP

The National Mediator Accreditation System (NMAS) is an essential framework in Australia that oversees and standardises the accreditation of mediators.

It provides a national accreditation scheme that sets minimum standards for training and assessment for individuals seeking mediator accreditation. The NMAS ensures that mediators have received adequate training, been evaluated for their competence, demonstrated good character, and hold professional indemnity insurance.

Accredited mediators are crucial in assisting parties in disputes to explore all available options and reach mutually acceptable solutions.

NMAS accreditation serves as a fundamental benchmark in the mediation industry, ensuring mediators adhere to professional standards and ethics.