Mediation is a form of alternative dispute resolution under Family Law where an impartial third party helps the parties reach an agreement on their issues. Alternative dispute resolutions are methods for resolving issues without having to go to court. Mediation can be either formal or informal. Informal mediation refers to mediation where the parties do not engage the services of a professional mediator while formal mediation is when the parties hire a professional mediator. More often than not, when the law talks about mediation, it refers to formal mediation.
There are several advantages to alternative dispute resolutions such as mediation. For one, these are often less costly than litigation. Mediation can also lead to faster results than court processes. One particular advantage of mediation is that gives more power and control to the parties.
For example, the parties can decide the pace at which they will handle a mediation. The main purpose of mediation is to make the process as less adversarial as possible while providing workable arrangements for the parties at the same time. Mediation also seeks to avoid the filing of a case in court by resolving the issues before it reaches the court.
Issues Suitable For Mediation
Mediation is suitable for a variety of issues that fall under family law. Some common issues that can be subject to mediation include, but are not limited to the following:
- Dispute about property
- Dispute about parenting
- Discussions about spousal maintenance
- Interim property matters
- Issues about child support
- Violations or Breaches of existing orders
- Issues regarding the implementation of existing orders.
- Disagreements over issues relating to parental responsibility
There is no particular time frame set for mediation. It usually depends on the parties and the circumstances surrounding the case. As mentioned above, one of the advantages of mediation is that parties can set their own pace. Mediation may be as short as a few hours to as long as several months.
Agreements Reached in Mediation
The agreement reached in family mediation is not really as binding as, say that of a court order. A mediator is not authorized under the law to ratify agreements reached in mediation. However, parties may engage the services of lawyers in order to ratify an agreement reached in mediation to ensure maximum compliance. Parties can still continue to negotiate between themselves even if they are unable to reach an agreement during Family Mediation. When this happens this is usually coursed through their lawyers. Parties can also opt to file a case in court if there is a failure to reach an agreement – more on this discussed below.
Collaborative Family Law
Collaborative family law is similar to mediation in the sense that it is also a form of alternative dispute resolution. However, it is markedly similar to mediation because, under collaborative family law, there is no impartial third party involved in the negotiations. Instead, under this method, the parties, assisted by their lawyers, will try to resolve their issues. Another difference is that under collaborative family law, when negotiations fail and no agreement is reached, the parties will have to obtain new lawyers because there will be a conflict of interest if they retain their old lawyers. On the other hand, under mediation, the lawyers who assisted the parties during mediation may be retained even when a case is filed in court.
Family Dispute Resolution
Perhaps the most common example of mediation in family law is family dispute resolution. The law actually requires parties to undergo mandatory family dispute resolution before they can apply to a family law court for parenting orders. Exceptions to this rule include:
- when you are formalizing an agreement through ‘consent orders’
- where family violence or child abuse is a factor
- when you are responding to an application to the court
- urgent issues
- a person is unable to participate effectively (for example, due to incapacity or geographical location), or
- a person has contravened and shown a serious disregard for a court order made in the last 12 months.
The main goal of family dispute resolution is to help the parties create a parenting plan and set out the agreed future parenting arrangements. Family Dispute Resolution (FDR) requires engaging the services of a family dispute resolution practitioner. FDR practitioners are trained in creating a supportive environment that fosters discussions. FDR practitioners are also trained in responding to domestic and family violence and in ensuring the safety of vulnerable people such as children. FDR services may be availed at any of the following:
- Family Relationship Centres
- Legal Aid Commissions
- Other community-based family law services
Some accredited FDR practitioners may also be engaged as private practitioners.
Cost of Mediation
Mediation costs are significantly lesser than undergoing litigation. However, this does not mean that mediation is a free service for all. Eligible parties may be provided with free mediation and Family Law Centres provide a free hour of family dispute resolution for every family. For clients who earn $50,000 or more, Family Law Centres charge $30 for the second and third hours. For clients who earn less than $50,000, the second and third hours of mediation are provided free by the center. Private practitioners may have their own rates for mediation as well.
Another feature of mediation is that the proceedings therein are subject to confidentiality. They cannot be shared outside the context of mediation. They cannot even be presented as evidence in court. The purpose of this is to create a safe environment for the parties that will foster discussions.
How do I start the Family Dispute Resolution?
The first order of business is to find an FDR practitioner. An FDR practitioner may be found at any of the above-mentioned places of business, or a private practitioner may be engaged. Once a mediator has been found, the place and time for mediation will be set.
A good FDR practitioner may begin the session by explaining to the parties what family dispute resolution is, and what kind of role the practitioner will play in the process. Issues are usually identified during the first sessions and the practitioner’s role is often to ensure that the focus will stay on the children. Sometimes, children may be included in the process if they of an age that is suitable for the proceedings.
After Family Dispute Resolution
Once the parties have come to an agreement, it can be recorded as a parenting plan. It will be reduced in writing, dated, and then signed by the parties. Parenting plans may also be subject to renegotiation over time, and the plan itself may provide for mechanisms on how this can be done in the future.
If the mediation or family dispute resolution is unsuccessful and the parties are unable to come to an argument, a certificate may be issued by the FDR practitioner which will allow an application to be filed in court. This is called the Section 601 Certificate and will usually say any of the following:
- the other party did not attend
- you and the other party attended and made a genuine effort to resolve the dispute
- you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
- the FDR practitioner decided your case was not appropriate for FDR, or
- the FDR practitioner decided it was not appropriate to continue partway through the FDR process.
Mediation is a good alternative for parties who are unwilling to go to court. Family law issues may cause a heavy strain on parties, especially if a case is filed in court, so mediation could be a good alternative in easing the burden and anxiety that litigation causes.