Is Mediation Compulsory?
Mediation is built into the court process and is the required first step before filing proceedings for parenting orders. Section 60I(1) the Family Law Act 1975 requires an applicant to firstly make a genuine effort to resolve their arrangements regarding parenting orders by way of attending mediation.
Attendance at mediation is compulsory (in most cases) providing early dispute resolution and avoiding an adversarial protracted dispute in court and placing the needs of the children as at the forefront. The emphasis on mediation recognises that it is better for parents to make their own arrangements for their children.
Parents are usually in a much better position to make decisions about their children than judges as they know their children’s personalities, capacity to cope and needs and wishes. Mediation also allows parents to create flexible and carefully tailored practical arrangements around both parents and children’s commitments, activities, holiday arrangements, health care or any other issues which may arise.
Family Dispute Resolution Providers
A Family Dispute Resolution Provider is an accredited mediator who has training and qualifications in dealing with families in conflict and assist parties to reach agreement. Attendance at mediation with a registered Family Dispute Resolution Provider is necessary to obtain a section 60I(1) Certificate which is then filed in the court as evidence the parties have made a genuine effort to resolve the dispute but have been unsuccessful.
For this reason, is always advisable to attend mediation with a Family Dispute Resolution Practitioner for parenting matters.
Family Dispute Resolution Practitioners are also trained in helping to resolve property matters.
Mediation is an inexpensive way to reach a settlement as to arrangements for children after a relationship comes to an end. It is generally better for parents to stay out of an adversarial system if possible as litigation can often sadly deteriorate into very harmful allegations about the other party creating ill-will and result in a protracted dispute.
More importantly, children are often harmed through exposure to high conflict separations and contested family court proceedings. For children, it is the unresolved conflict, rather than the separation of their parents than can result in long term psychological harm to children.
Mediation also is a cheaper and quicker option. Engaging in protracted litigation can be extremely costly and slow and very stressful. It can take many months, sometimes years to have the court determine a matter by which time your children may have grown up. Whilst courts provide expertise and independent decision making, litigation should always be a pathway of last resort due to the significant cost, delay and the uncertainty of the result.
Can All Matters Be Mediated?
Unfortunately, mediation is not always possible for reasons of family violence, drug use or alcohol abuse, the fact that a parent has a personality disorder or a serious mental illness.
Sometimes a parent has an unrealistic expectation about outcomes and proposes equal time for a very young child which is inappropriate or has an ulterior motive for proposing no time making dispute resolution impossible for even a skilled mediator to assist parties to reach their own agreement.
Circumstances of urgency such as the abduction of a child and where the child is placed at serious risk of harm may also mean that mediation is not appropriate and an urgent application is to the court is required.
How Does Mediation Work?
Once a mediator has been chosen, an invitation to mediate will be sent to the other party. In some cases a mediator may be chosen from a list of proposed mediators provided by one party to the other.
Prior to the mediation, the mediator will usually meet with each of the parties separately to gain an understanding of what each party wishes to achieve.
The mediator will then facilitate a structured meeting in a safe environment where the parties can express their point of view and be heard by each other. Each party will be encouraged to listen without interruption so as to avoid arguments. Where this is not possible, parties can sit in separate rooms or sometimes attend by telephone.
An agenda for the meeting will be set for matters to be discussed and if an agreement is reached a Parenting Plan or Consent Orders can be drafted. Often lawyers will attend the mediation and help with the drafting process, but this is a matter for the parties.
Mediation is also useful to assist resolve disputes if an agreement or court orders becomes unworkable or circumstances change. Mediation assists in ensuring parties are able to maintain amicable relationships with each other into the future, which is particularly important when there are children to consider.
Mediation is a way to resolve your dispute quickly without the expense, uncertainty and stress of going to court. It is also a way of reducing ongoing conflict and stress and provide for more flexible arrangements for parents particularly in the early years of a child’s life where it may be necessary to re-visit mediation as circumstances change and enable parties to find a respectful way to co-parent into the future.
How We Can Help
As an accredited Family Dispute Resolution Practitioner, Quinn & Scattini Lawyers’ Senior Associate, Kathleen Dare, is well-positioned to assist her clients resolve disputes with their former partners.
Upholding the high standards of being required of an accredited practitioner, Kathleen provides the best possible mediation representation for her clients while approaching dispute resolution with a professional, focussed approach.
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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.