Mediation is a way of resolving disputes between people in conflict, usually facilitated by a neutral person. Separated families are encouraged to use family mediation to help resolve their disputes about children, instead of using the family law courts.
What is family mediation?
People refer to ‘mediation’ in many different ways. It can be as informal as having a friend or family member helping to talk through the issues in dispute. It can also be a formal process involving a professional mediator.
Disputes can involve just two people in conflict, or include extended family members. Where there are issues related to child protection, mediation may involve full family group conferencing.
When disputes can’t be resolved by mediation, the matter may need to go to a court for a judge to make decisions. Going to court is a long, stressful and expensive process. The aim of mediation is to avoid the situation reaching this point.
The family law system encourages separated families to come to their own arrangements in caring for their children without going to court. This can be done in several different ways:
- discussion between the parents
- using a friend or family member to help
- informal general mediation
- using a special family mediation process covered under the Family Law Act 1975 called Family Dispute Resolution (FDR).
After a relationship breakdown, discussions about dividing property and future care for children can become very emotional. This is when people may need to use a more formal mediation process with an accredited Family Dispute Resolution practitioner.
Family Dispute Resolution
Family Dispute Resolution (FDR) is a special type of mediation for helping separating families to come to their own agreements. During FDR families will discuss the issues in dispute and consider different options, while being encouraged to focus on the needs of their children. FDR uses a neutral and accredited Family Dispute Resolution practitioner.
The main objective of FDR is to assist participants to make a parenting plan setting out the agreed future parenting arrangements.
It is a practical and low cost way for separating families to sort out future parenting arrangements with professional help. For more information see the Family Dispute Resolution Factsheet.
It is compulsory under Australian family law for separated parents to attempt Family Dispute Resolution before applying to a family law court for parenting orders.
There are exemptions to this requirement, including:
- when you are formalising an agreement through ‘consent orders’
- where family violence or child abuse is a factor
- when you are responding to an application to 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.
Family Dispute Resolution practitioners
When a family disagrees about arrangements for children after separation, an FDR practitioner is a good person to ask for help.
An FDR practitioner is an independent person trained in mediation and negotiation and specialising in family disputes. They are neutral and don’t take sides with any of the people involved in the mediation. They will facilitate the process by encouraging people to talk about the particular issues in dispute.
They are trained in working in a family law environment and in responding to domestic and family violence. They are also trained in creating a supportive environment, particularly for the safety of vulnerable people. They should provide a safe environment to allow people to openly discuss and clarify issues as well as allow them to feel safe to disagree.
An FDR practitioner is accredited under the standards set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.
Family Dispute Resolution services
FDR services are available at government-funded services including:
- Family Relationship Centres
- Legal Aid Commissions
- Other community-based family law services
There are also accredited FDR practitioners who provide their services as a private business.
How to find a Family Dispute Resolution practitioner or service
To find a government-funded service, call the Family Relationship Advice Line on 1800 050 321 or use the Find Local Help search to look for a Family Relationship Centre, Family Dispute Resolution service or Regional Family Dispute Resolution service near you.
To find a private Family Dispute Resolution practitioner, search the Family Dispute Resolution Register. Information about private provider’s costs can also be provided through the Register.
A common question people ask is “How long will the mediation process take?” There is no simple answer to this question. It can take a few hours, or can be over a few days. It depends on the number and complexity of issues being discussed.
Some families have complex issues to deal with that can make mediation difficult and take a long time. When each family member makes their child’s interests the priority, workable parenting agreements can be reached sooner.
If a dispute can be resolved through mediation, it will be significantly less expensive than having to go to court.
The cost of FDR depends on the provider and may be free for eligible people. Private providers set their own fees which can vary. Community-based family law services have a standard fee policy based on income levels and capacity to pay.
Family Relationship Centres provide one hour of FDR free to every family. Centres charge clients earning $50,000 or more gross annual income $30 per hour for the second and third hours. Clients who earn less than $50,000 gross annually and those who receive Commonwealth health and social security benefits receive the second and third hours free. If further sessions are required, Family Relationship Centres may also charge fees in accordance with the Centre’s fees policy.
You should let your FDR service provider know if you are on a low income or experiencing financial difficulties.
An FDR service provider should be able to provide a suitable venue or options that suit your circumstances.
An FDR session doesn’t have to be face-to-face or in the same room as the other person. It can even be done by telephone or video call. This can be for many reasons, including safety concerns or because the participants live a long way from each other.
Everything you say in front of an FDR practitioner is confidential. There are some exceptions, such as to prevent a threat to someone’s life or health or the commission of a crime.
What is said during FDR cannot be used as evidence in court. An FDR practitioner must report child abuse or anything that indicates a child is at risk of abuse, and this may be used as evidence in some circumstances.
Counselling and Family Dispute Resolution
Unlike counselling, FDR does not focus on the emotional side of relationships. It concentrates on resolving specific disputes.
Participants may find it helpful to see a counsellor before going to FDR. This can help to develop a strategy to stay focused on achieving a positive outcome during the mediation session.
When FDR is not working, the FDR practitioner may suggest other options, such as family counselling.
Children and Family Dispute Resolution
Sometimes, a mediator will include children in the mediation if they are of an age or maturity that is suitable to the proceedings.
Other models of mediation can be ‘child-inclusive’, with a child consultant that talks with the children and provides the child’s views back to the parents during the mediation.
Starting Family Dispute Resolution
Once someone engages an FDR practitioner, the practitioner will usually invite the other person to a mediation session. The practitioner will advise the other person that if they don’t attend the mediation, the practitioner may need to issue a certificate so that the first person can make an application to a family law court.
The FDR practitioner will assess if FDR is suitable for the family situation. This includes considering issues such as family violence, safety, equality of bargaining power, risks to children, the emotional and psychological health of participants and any other issues that they think may make FDR unsuitable.
The FDR practitioner should also explain their role and the process of mediation so each party understands clearly what is expected and the potential outcome of the mediation.
What happens in Family Dispute Resolution?
The FDR practitioner will help to identify the issues that need to be resolved and encourage each party to listen to the other’s point of view.
The FDR practitioner will try to keep each person on track and focussed on the children. Ideas and options will be shared with the aim of coming up with workable solutions that are in the best interests of the children.
Sometimes it’s not suitable to have each person in the same room so the practitioner may arrange to go back and forth from different rooms. This is called ‘shuttle mediation’. Sometimes it is necessary for the mediator to talk individually with each party to help move issues along or to discuss options for negotiation.
The participants will be helped to develop a parenting plan to set out arrangements for the children. An FDR practitioner will also check that everyone understands what is being said and agreed upon.
After Family Dispute Resolution
Once an agreement is reached it can be recorded as a parenting plan. This must be in writing, dated and signed by both parents. It can include mechanisms to change arrangements and resolve disagreements. Parenting plans can be renegotiated over time if necessary.
You can read more about parenting agreements on this website.
Sometimes agreement may not be reached at the time of the mediation. Sometimes an agreement can be made in an informal process after the FDR session.
When Family Dispute Resolution is unsuccessful & certificates
If the mediation is not successful for whatever reason, an accredited Family Dispute Resolution practitioner can issue a certificate to allow an application to be made to a family law court. The certificate is called a ‘Section 60I certificate’ and can only be issued by an accredited Family Dispute Resolution practitioner.
A Section 60I certificate can also be issued if FDR is not appropriate for the particular situation. This could mean there are concerns about family violence, the safety of the parties and risks to children, the ability for each party to be able to negotiate, or other issues the practitioner feels are relevant.
The Section 60I certificate will say one of the following things:
- 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 part way through the FDR process.
Note: ‘Party’ means the other person or persons involved in the parenting dispute.