What is the difference between Mediation and Family Dispute Resolution (FDR)?

Family Dispute Resolution, referred to as FDR, is a very specific form of mediation that focusses on resolving disputes between people relating to children and parenting matters. To conduct FDR mediations, the mediator must hold additional qualifications in Family Dispute Resolution and have an understanding of the Family Law Act 1975, the impact of conflict on children, matters of domestic and family violence and how to hold a mediation focussed on the needs of a child. A Family Dispute Resolution mediator must meet qualification requirements to be accredited with the Attorney General's Department and must adhere to specific legal obligations in conducting the mediation and intake sessions.

What is a Section 60(i) Certificate?

A Section 60(i) Certificate is a requirement of the Family Law Act 1975 informing the court that the parties have attempted to resolve their dispute regarding children prior to attending court. An accredited Family Dispute Resolution Practitioner can issue a Section 60(i) Certificate in a range of circumstances, which will be explained by the mediator in greater detail based on the circumstances of each unique situation. While FDR mediations may be successful in helping parties avoid court and reach an agreement regarding co-parenting responsibilities, in some situations, parties will turn to the courts for a resolution, requiring a Section 60(i) to proceed through the legal system.

Section 60(i) Certificates only apply to matters involving children and are valid for 12 months from the most recent attempt at Family Dispute Resolution and cannot be reissued after this time.

Do I need a lawyer at mediation?

A lawyer is not required to be present during mediation. However, parties can bring their lawyers to mediation if they prefer. If one party or both parties request their lawyer to be present, this will need to be discussed with the mediator and agreed to by parties prior to the mediation. While having a lawyer present during mediation is not a necessity, we do recommend that parties seek legal advice prior to mediation across a range of matters, especially regarding financial and property disputes.

Do I bring the children to mediation?

No, children should not be present during mediation.

Can I bring a support person to mediation?

People can bring a support person to mediation. However, it is important the support person fully understands that they are not allowed to participate in the mediation process. If you would like a support person present during the mediation, it’s important you discuss this with the mediator prior to mediation.

How long does mediation take?

If the mediation is progressing towards a solution and parties agree to keep negotiating, the mediator can continue beyond the prescribed timeframe at an additional hourly rate. Further information can be found in the fees section of the website.

Where is the mediation held?

Mediations are held in private rooms in a comfortable and relaxed environment in the CBD precinct in your capital city. For regional and remote mediations or if parties do not want to be in the same room, we offer online mediation services via Zoom. Some parties prefer online mediations for convenience and cost.

Do I get to talk to the mediator before the mediation?

Talking to the mediator prior to the mediation is an important part of the mediation process, called the intake meeting. During the intake meeting – which is the first step in the formal mediation process - the mediator will meet with you and the other party separately to discuss your issues and ask questions about your situation. During this meeting, you will be able to tell the mediator what the important issues are you hope to resolve in mediation. This discussion is confidential and can take place in person, online or over the phone. This meeting will also assist the mediator to determine whether the dispute is suitable for mediation.

What happens if one person refuses to enter mediation?

In terms of cost, efficiency, time, stress and anxiety, in most situations, mediation is the preferred method of resolving a dispute between parties. The mediator will speak to both parties separately during the intake meeting, encouraging them to enter mediation for many of the reasons mentioned here. In the event of FDR mediations, if one party flat-out refuses to enter into mediation, despite the dispute being suitable, the mediator will issue a Section 60(i) Certificate and the matter will proceed through the court system. For all other matters, if one party refuses to enter mediation the matter may have to go through the courts, where the judge is likely to order both parties into mediation.

Is everyone in the same room?

Generally, the mediation is conducted for the most part, in the same room. However, the mediation is always held in a setting where separate rooms are available for each party to use, including discussing things with the mediator privately at different stages of the mediation process. If the parties do not feel comfortable communicating with each other in the same room, mediation can still take place where parties are based in different rooms and the mediator moves between parties. This is known as a shuttle mediation. If a shuttle mediation is required, this should be discussed and arranged with the mediator prior to mediation taking place. Mediations are also frequently and successfully conducted by video over Zoom.

What happens next if we reach an agreement?

If both parties agree to an outcome, the mediator will record the details of the agreement, ensure both parties are comfortable with the details, then make copies of the agreement for both parties. Some parties will sign the agreement at the mediation, while other parties will agree in principle, but wish to consult with their lawyer before giving their final agreement.

Regarding parenting agreements, the agreement usually takes the form of a ‘parenting plan’, which is a signed and dated document detailing what parents have agreed to in relation to their children. While the parenting plan is not legally enforceable, it can be presented in court as evidence of what both parties had agreed to in relation to the care and parenting of their children. During mediation, some parties reach a parenting agreement that is then formalised in the form of consent orders drafted by a solicitor and filed in court where they become legally enforceable.

In relation to assets such as property, mediation agreement documents are also formalised into orders to be filed in court.

What happens next if we don’t reach an agreement?

Occasionally parties fail to reach an agreement at the conclusion of the mediation process. In this instance there are limited options moving forward aimed at achieving a resolution. The parties can independently continue to communicate with each other hoping to work out an agreement, parties can arrange another mediation to continue or begin the process over, or as a last resort, parties can use the legal system and hand the matter to the courts to make a ruling.

What is the most likely outcome of a mediation?

In most instances, a mediation enables parties to agree to an outcome of the dispute they can live with, enabling them to move on with their lives and livelihoods through mutual, confidential agreement.

What are consent orders?

A consent order is a written agreement approved by the court, generally falling into two categories: parenting orders and financial/property orders. Agreeing to sign draft consent orders to be then approved by the court means you agree to follow the terms stated in the document. The court views these orders as final - once the court has approved them, there is no cooling off period, and you cannot change your mind. In the scenario of parenting orders, the court will take into consideration whether the draft consent orders are in the best interests of the children and for financial/property consent orders that they are fair and equitable.

What happens if the consent order is rejected by the court?

If you submit draft consent orders and the court has written back to advise you those orders have not been approved, there can be several reasons why the orders were rejected:

The orders were not written in a format that will be legally enforceable by the courts

The orders are not detailed enough and do not contain contingency orders (for example what happens if a parent wants to relocate to a different city, or does not make the agreed-to lump payment as outlined in the financial settlement

The court registrar has reviewed the draft orders and determined they are not in the best interests of the children or are not fair and equitable

The orders may not comply with requirements outlined in the Family Law Act Australia

With this in mind, we strongly recommend you seek legal advice about next steps when your consent orders have been rejected.

Can I change a parenting consent order?

Regarding parenting consent orders, once the court approves them, they are final and in place until the child turns 18. The court does, however, acknowledge that circumstances do change, and unexpected events happen where the orders made final by the court are no longer appropriate.

In such a scenario, a parent can apply to vary the existing orders considering the change in circumstances that have led to a different reality. If both parents can agree to the variation, they can file an application for consent orders that change the original orders approved by the court. However, if it is one parent only who is seeking to change the consent orders, then they must bring an application before the court seeking changes to the agreed-to consent orders. The court will only agree to changes in the consent orders if the court determines the changes in circumstances have significantly impacted the child or co-parents responsible for the child and that the change request is fair and equitable. It’s important to note that the court considers these applications carefully and in detail.

Significant changes in circumstances can include:

The living situation of one or both co-parents has significantly changed

One party is seeking to relocate with the child

Additional, relevant information has become available that was not available to the court when agreeing to the original consent orders

The co-parents have willingly entered into a new co-parenting plan which is no longer reflected in the original consent orders

One or both partners have married or re-partnered

There has been abuse of the child

A co-parent is of ill-health and no longer able to care for the child

With this in mind, we strongly recommend you seek legal advice about next steps when applying to the court to change your consent orders.

What is the difference between a parenting agreement and a parenting consent order?

A parenting consent order is approved by the court, whereas a parenting plan is a co-parenting agreement between parties. A parenting agreement is not legally binding/enforceable, but a parenting consent order is, and if not adhered to, is viewed by the courts as breaking the law, which comes with penalties. Whilst informal and often allowing for some flexibility, parenting agreements should be signed and dated by both parents and agreed-to without duress or coercion. A parenting agreement is not a court order and so a breach of the agreement is not considered to be breaking the law. However, if the matter goes to court, the court will consider the parenting plan in place and reasonably question why it was not adhered to.

How do I get mediation started?

If you’ve made it this far, then you’ve made a solid start. Whether mediation is court ordered or voluntary, the first step is reaching out to a mediator and discussing your circumstances (this is usually free). As the initiating party, the mediator will conduct a confidential intake session with you first, which usually lasts between and an hour and an hour and a half. The aim of this session is for you to tell ‘your side of the story’ and share with the mediator what you hope to achieve through mediation. After the intake, the mediator will then reach out to the other party inviting them to mediate. If the other party agrees, the mediator will then hold a confidential intake session with them. Once this phase is complete, the mediator will assess whether the dispute is suitable for mediation, and if the matter is suitable, will invite parties to mediation. In most circumstances parties pay their own costs, but one party may pay for the entire process if appropriate and agreed by all parties and the mediator.

What happens when someone refuses to participate in mediation?

The short answer is court.

In a family matter if one party refuses to participate in the mediation process, the mediator can issue what is referred to as a Section 60i certificate, which allows the initiating party to bring the matter before the courts. The certificate will state:

“The person did not attend FDR due to the refusal or failure of the other person or people to attend”.

The court is likely to order parties into mediation as both parties must make a genuine attempt to participate in family mediation before the matter ends up in court.

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Fresh Start Mediation services the whole of Australia, offering face to face and online mediation options.