Family Dispute Resolution (Blog by Kathleen Clark)
You’ve been to see your family law solicitor about a parenting matter and hear the dreaded words, “you need to attend mediation”. What does that even mean?
The Family Law Act provides that before making an application for a parenting order, a person must make a genuine effort to resolve their dispute by family dispute resolution(see section 60I(1)). It does not mean relationship or marriage counseling. Like any industry, family law has its own jargon – “family dispute resolution” is regularly interchanged with phrases such as “mediation” and “litigation intervention conference”.
“Genuine effort” means that you need to participate in the mediation process in good faith. Behaviours that are NOT in good faith include:
- Failure to make proposals in the first place
- Unnecessary postponement of meetings
- Refusing to agree on trivial matters
- Shifting position just as agreement seems in sight
- Adopting a rigid non-negotiable position
- Failure to make counter proposals
- Unilateral conduct which harms the mediation process
- Refusal to sign a written agreement in respect of the mediation process or otherwise
- Failure to do what a reasonable person would do in the circumstances
(see Tom Altobelli, A brave new world: pre-action procedures in family law, Australian Family
Lawyer, Vol 17 (2) at 34-35).
What if it fails?
If the process fails, and it may do so for a myriad of reasons, the mediator (also known as family dispute resolution practitioner) will issue each participant with a section 60I certificate.This is then filed with a court application for parenting orders.There are different types of certificates, and you should check with your lawyer about what type you have been issued, and whether there are any potential cost implications.
Each mediation provider has their own process.Broadly speaking:
- There is an intake phase.This provides each person participating in the mediation a chance to meet with the mediator, explain how the parenting relationship has worked, current issues and their concerns.Some providers at this stage require each participant to undergo some courses, counselling or other training to ensure they are ready to mediate.
- There is the mediation phase.What this looks like for each mediation is determined on a case by case basis.Some mediations are conducted by telephone, some in separate rooms (called shuttle mediation) and some face to face.Broadly speaking there is opportunity at the commencement of the mediation for each person to say what has brought them to mediation, and what they are hoping to achieve.The mediator will then facilitate discussion between the participants and help them explore options for resolution.It is not the mediator’s role to decide about certain facts or decide who is right.The mediator controls the process that allows the attendees to try and resolve their dispute.
Parenting Plan or Orders
If agreement is reached, you may receive a parenting plan.A parenting plan is a written document, signed and dated by the attendees.It may deal with a variety of matters such as:
- Who the children will live with
- How the children will spend time with each parent
- Communication between attendees/attendees and each child
- How the plan will be updated
Attendees may wish for the parenting to plan to become a Court order and will need to talk to a solicitor about this process.
Mediation is not just another hoop to jump through to get to Court.It is an opportunity for you to make the decision about how to parent your children.If you cannot agree or compromise with the other person involved, then you may end up handing over your power to make decisions about how to parent your children to lawyers and judges.Whilst sometimes this is necessary, it is far better if it can be avoided.
Given its importance, you should seek legal advice as part of your preparation for mediation.Things to discuss with your lawyer include:
- What does the Family Law Act say about parenting matters?
- What types of proposals would be reasonable in your particular circumstances?
- What are some negotiating tips and strategies that you can employ?
- What kind of topics should you be ready to discuss at the mediation, and what points will you raise?
If you would like legal advice, please contact either Tim Cullenward or Kathleen Clark today on (02) 6882 3133.
Blog posted by Amanda Quin. Blog Author Kathleen Clark.