As divorce and Family Law specialists, Gordon & Barry Lawyers believe that Family Dispute Resolution provides separating couples and families with a safe and structured opportunity to discuss issues that are in dispute between you, to explore different options for the resolution of these issues, and hopefully to negotiate an agreement which will allow you to move forward without the stress of a court battle.
Under the current Family Law Act, it is almost always compulsory for parents to attempt Family Dispute Resolution before seeking a parenting order in Court. Research suggests that those who make a genuine effort to focus on the best interests of their child during Family Dispute Resolution tend to establish a more functional parenting relationship, and that this has many long-term benefits for their children. The exceptions are cases where urgent orders are required, or where there is domestic violence or child abuse.
Under the current Family Law Act, mediation is not a pre-requisite to commencing court proceedings for a property settlement. However, the court does require you to have made a genuine effort to try to reach an agreement, and the court will almost always refer parties to some form of dispute resolution prior to hearing your case. Depending on the size of the property pool, this may be a Conciliation Conference before a Registrar, or a private mediation. If you are already attending mediation for a Family Dispute involving children, it often makes sense to mediate property issues as well. Depending on the complexity of the issues, this may require a separate mediation session. If your dispute is solely about property, mediation can be a less expensive and more satisfying way to decide the division of your assets. To mediate on property issues, you will need to provide full and frank disclosure of your assets and liabilities at the time of separation. Failure to do so is likely to result in your agreement being overturned by a Court at a later date.
The location and timing of your Family Dispute Resolution will be based on your needs, which will be determined during the intake session. At this session, your Family Dispute Resolution Practitioner (FDRP) will also explain the steps of the mediation process. Your FDRP's role is to be a neutral third party. They control the process, but not the content of what is discussed. It is not their role to provide legal advice or tell you how to resolve the dispute, but they will assist you in identifying and exploring options to resolve the issues which are important in your situation. Where children are involved, your FDRP will help you maintain a focus on the 'best interests' of your child.
As a brief overview, the mediation will usually progress through four stages:
1. The explanation and clarification stage: your FDRP will welcome you and provide an introduction to the mediation, then invite you to explain in turn what brings you to mediation and what issues are important to you. Your FDRP will confirm that you have been heard correctly and identify issues, or problems, to be placed on the agenda for discussion.
2. The exploration stage: in this stage, you have an opportunity to directly discuss your feelings, needs and concerns about the problems on the agenda with each other, while your FDRP ensures that everyone is heard and the conversation remains respectful.
3. The negotiation stage: when you are both ready, your FDRP will move the discussion to generating and exploring the workability of options. Options are ways in which you might move forward on agenda issues. At this stage, your FDRP will prompt you to start looking for solutions to the problems which have been discussed.
4. The agreement stage: as you begin to find solutions which are mutually satisfactory, your FDRP will ask questions to test whether they solve the problem for both parties and are workable for the future. When you agree that an option works for you both, your FDRP will record it for inclusion in your mediated agreement.
It is very important that you feel safe at every stage, before and after the mediation process. If you have any concerns about your safety or the safety of your children, you should tell your FDRP as soon as possible. If both parties agree, your FDRP may be able to offer alternative arrangements, such as mediation where the parties are not in the same room, or a s60I certificate may be issued. There are four types of Certificate which your FDRP can issue. These state that:
1. the party filing the certificate did not attend Family Dispute Resolution due to the refusal or failure of the other party to attend;
2. the parties did not attend Family Dispute Resolution because the FDRP considered, having regard to the matters mentioned in the regulations, that it would not be appropriate to conduct the proposed Family Dispute Resolution;
3. the parties attended Family Dispute Resolution and everyone who attended made a genuine effort to resolve the issue or issues in dispute; or
4. the parties attended Family Dispute Resolution but one or both parties did not make a genuine effort to resolve the issue or issues in dispute.
In most cases of Family Dispute Resolution, only the mediator and the two separating partners are present in the mediation room. However, if there are no objections, you are welcome to arrange for a support person or family member to accompany you. Support people do not take part in the mediation but are present to give you moral support. It is generally recommended that you do not bring your new partner as a support person. If you would like to have your lawyer with you, this may also be arranged.
Here at Gordon & Barry Lawyers we can assist you with preparing for mediation, defining your issues, developing possible solutions and reality testing options from a legal perspective. It is important to remember that mediation is a non-adversarial process, and that we are not there to argue for you as we would in court. However, we are happy to advise and support you to achieve a lasting and workable win/win agreement. We can also assist you with drafting a parenting plan or financial agreement based on your mediated agreement, which the Family Court can make into an enforceable consent order.
Mediation is based on principles of fairness and equity. You will get the most out of the mediation if you maintain realistic goals and are thoroughly prepared. If you have any questions about mediation, please get in contact with us so we can share with you our positive, practical and forward-looking approach to the Family Dispute Resolution process.