Mediation and Family Dispute Resolution
What is Mediation and Family Dispute Resolution?
The vast majority of all Family Law proceedings are never heard by the court at trial. Instead, they are settled in negotiation by the parties and therefore resolved without the need to go to trial. Generally, lawyers aim for this result especially considering how expensive going to trial can be.
Mediation is basically a discussion between the parties overseen by an independent third party; the mediator, who is qualified and accredited and who helps to facilitate a resolution of the dispute. If there is no resolution at the mediation, your matter can continue towards trial or you can have more than one mediation.
What are the advantages of mediation?
1. The main advantage is cost saving. Going to trial can be a very costly exercise. A successful resolution through mediation means that both you and the other party spend less money and you are able to reach an agreement that is flexible and suits you both.
2. Mediation is effective in that it enables you to quickly resolve your dispute, without having to wait for court dates. Also, because you’ve both negotiated the outcome yourselves it is more likely that both parties will adhere to the outcome.
3. It is important to note that the mediation is confidential and without prejudice (i.e., what is said cannot be brought up against you at a later date in court proceedings).
Our Family Lawyers can assist you with settlement negotiations and organising mediation to resolve your matter. The assistance of a lawyer in preparing for a mediation or settlement negotiation is also crucial to ensuring that the result is favourable to you.
Family Dispute Resolution (FDR)
Family Dispute Resolution is a specific type of mediation that assists separated couples in sorting out arrangements for their children and sometimes, also property. It is conducted by a Family Dispute Resolution practitioner who is required to have special training to allow them to conduct FDR’s.
There are now a large number of agencies that provide Family Dispute Resolution services for people involved in a parenting dispute. The main providers are community based or government providers but these often have long wait lists. Private providers of these services are common and can be much faster to organise and usually have more flexible arrangements, however can be costly.
During FDR, the practitioner will assist the parties to try and reach an agreement about the living arrangements of the children. Sometimes this also includes property settlement. It should be noted however that, the practitioner cannot offer legal advice to the parties and cannot decide the outcome of the FDR.
In order for agreement to be reached, the parties must reach that agreement between themselves. Sometimes at the FDR, the parties may agree on some of the matters in dispute but not all of them. Whilst technically this means that the FDR did not settle, in some cases a Parenting Plan can be drawn up to set out what has been agreed to and a further FDR can be scheduled.
What can you do prior to attending at Family Dispute Resolution to improve the likelihood of success?
Our advice is that prior to attending FDR, the parties each obtain their own independent legal advice from a specialist family lawyer.
It’s important to do this so that you can obtain advice tailored to your individual circumstances about matters such as parental responsibility and living arrangements of the children.
If you’re considering dealing with property settlement at FDR, it’s also very important to get advice about your entitlements beforehand so that you are aware of these when you are mediating. Every case is different and you cannot rely on generic material published about these matters; you should get tailored advice, specifically for you.
A good lawyer can assist you to work out a detailed proposal that fits your situation and can also tailor a solution to your needs and point out matters that you may not have considered previously. They should prepare a written proposal for you to take with you to reference and work through at your FDR. This gives you the best chance of getting the most favourable outcome for you and your children.
Exceptions to the Family Dispute Resolution process
The law provides that parties are required to attempt Family Dispute Resolution prior to beginning proceedings in court. There are however exceptions to this requirement which include:
• Cases where there is family violence or abuse or a risk of family violence or abuse;
• Cases where an existing parenting order has been breached; or
• Cases where the application is urgent.
If you’re looking at going to court for a parenting order, you should obtain advice if you’re seeking to rely on one of these exceptions.
A Family Dispute Resolution practitioner provides a certificate known as a Section 60I Certificate to confirm that the parties have attended at Family Dispute Resolution. They will still provide the certificate if:
• one of the parties did not turn up;
• the practitioner considered that it would not be appropriate to conduct the proposed Family Dispute Resolution (this often occurs in cases of domestic violence);
• both parties have attended and both parties made a genuine attempt to resolve the issues;
• both parties attended and one party did not make a genuine effort to resolve the issues; or
• the parties began dispute resolution but the practitioner did not consider it would be appropriate to continue the dispute resolution.
If you’re thinking of going to FDR, make sure you get legal advice from a lawyer experienced in Family Law first. The more prepared you are when going into FDR, the better your chance of a good result.
How Can Andersons Help?
At Andersons, we can arrange private FDR where the parties can have their own legal representatives present at the mediation, to provide advice. We can also advise you and guide you through the whole process.
We offer a 90 minute initial meeting to develop a “Family Road Map” tailored to your personal situation.
All your concerns and questions will be addressed in this appointment and your lawyer will explain the process and outline a plan for next steps. All for a set fee.
For more information or to book your 90 minute “Family Road Map” appointment, please call 8238 6666 or email enquiry@andersons.com.au
