What is Mediation?
In the context of family law disputes, mediation is the process during which a separated couple work together to resolve their property and/or parenting matters with the help of an impartial and independent mediator. Parties can choose to engage in mediation either prior to or after court proceedings are commenced.
There are a number of services available to parties involved in financial or child related disputes. These include, however are not limited to; counselling, mediation, family dispute resolution, conciliation and mediation style conferences.
It is important to note in your understanding that mediation varies from arbitration. Unlike an arbitrator, a mediator does not impose or force an outcome. Instead, a mediator assists the parties to reach their own conclusion to their matter.
Family Dispute Resolution
What is it?
Family Dispute Resolution (FDR) is a specific type of mediation. FDR must be undertaken prior to the commencement of parenting proceedings in the Family Court. The Family Law Act (1975) and Family Court Act (1997) both require parties to at least attempt FDR before making a parenting Application to the Family Court (unless there are extenuating circumstances).
In the event the parties cannot reach an agreement at mediation or one-party refuses to engage in the mediation process, the Family Dispute Resolution Practitioner will issue a Section 60i certificate. One of the parties is then able to use this certificate to file an application with the Family Court.
Is it a requirement?
The Family Court requires parties to attempt mediation prior to applying in the Family Court because it is seen as a useful tool to assist with matters which may not need to end up decided before a judge or magistrate. It is to avoid matters ending up in the Family Court that could have been solved by discussions at FDR.
Where can I find a practitioner?
If you are thinking about starting proceedings in the Family Court and haven’t spoken with a FDR Practitioner, please see below for a list of practitioners recommended by our offices;
Public Mediation Agencies
- Relationships Australia: https://www.relationships.org.au/
- Anglicare: https://www.anglicarewa.org.au/
- Centacare: https://www.centrecare.com.au/
- Gosnells Community Legal Centre: https://gosclc.com.au/
There are also various private agencies that we can recommend. Who we recommend may depend on your type of matter, however, feel free to get in contact with one of our staff members if you would like a recommendation. We note that private mediation is typically more expensive however the wait time for an appointment is less than public mediation.
Are there exceptions to the FDR requirement?
In short – yes. In certain circumstances the Family Court is able to override the requirement for parties to attend FDR prior to commencing proceedings. This occurs in the following cases;
- The application is urgent;
- There has been risk of family violence or child abuse;
- The application is occurring because a party has breached a previous parenting order of the Court in the same matter;
- One of the parties was not able to attend FDR due to reasons such as physical distance etc.
If you are reading the above and feel as though your matter may meet these requirements, we invite you to contact our offices for further information.
Court Ordered Mediation
Once proceedings have commenced in either financial or parenting matters, the Court may order the parties to attend a Mediation Style Conference (‘MSC’) or a Conciliation Conference. It is now a general rule in financial matters that parties must attend one of these conferences for proceedings to progress.
These are services provided by the Family Court that include the involvement of a Registrar (Conciliation) or an experienced family lawyer, judge or barrister (MSC) acting as the relative mediator. Typically, these conferences are seen as collaborative and require each participant to be represented by a lawyer, unlike Family Dispute Resolution.
We have reached an agreement at Mediation – now what?
As mentioned previously, Mediation differs from Arbitration for one primary reason. That being, the outcome is not enforceable on the parties unless/until the agreement is formalised in a Minute of Consent Orders, Application for Consent Orders or Financial Agreement (depending on what stage of the Family Court you are in).
If the parties are already in Court, in the best circumstances, a Final Minute of Consent Orders can be formalised and filed which signifies the end of the parties proceedings. Similarly, in the event the parties attend FDR, an Application for Consent Orders or Parenting Plan may be the formal outcome.
Should the parties be in proceedings and no agreement is reached, the parties are to consider other ways to resolve the matter. This may involve Court proceedings, however, will not always.
If you have any questions in relation to Mediation, Family Dispute Resolution or any of the involved steps that were not covered by this article, please do not hesitate to contact our offices.
Joss Legal prides itself in providing supportive and affordable advice to our clients and understands that the Mediation process can be daunting without proper explanation. If you would like to book in with one of our experienced solicitors for an initial consultation, please contact (08) 6559 7480 or via email at firstname.lastname@example.org
Prepared by – Kym Barrrett-Lennard