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Family relationship breakdowns can be highly emotional. Most of the time, separating couples find it difficult to agree on property settlement and parenting arrangements. While there is a Family Law system in place to help, it is highly recommended that where possible, you and your former partner should engage in family dispute resolution (FDR) before obtaining the assistance of the Court for your family law issues. The Court may make an exception in an emergency, for example, where a parent has refused to return a child after visitation or is attempting to leave the country with the child.
If you are in the process of separating, contact our team of friendly family lawyers for a free and confidential initial consultation.
What is mediation?
Mediation is a structured negotiation process in which a neutral third party, known as a mediator, assists the parties to a dispute to identify and assess options and negotiate an agreement to resolve their dispute. It is one of many alternative dispute resolution methods.
Unlike a court hearing, mediation is a quick and cost-effective method of resolving your family law matter. It allows you to voice your point of view and come to an arrangement that best suits both parties. Mediation can take place over several hours or days depending on the complexity of the matter and the willingness of the parties to engage in the process.
In Australia, the Family Law Act 1975 (Cth) requires parties to Family Law proceedings to make a reasonable attempt to mediate their family law dispute before applying to the Family Court for court orders. It is irrelevant if you were married or in a de facto relationship, you MUST attempt mediation. If you fail to complete mediation before applying to the Court, the Court has the discretion to refer you to mediation before it will hear your matter.
If family law mediation is unable to be completed, a mediator can issue you with a section 60I certificate. Mediation may not be able to be completed for the following reasons:
- One of the parties didn’t attend
- You both attended and made a genuine effort to resolve the dispute but couldn’t reach an agreement
- You both attended but one of you did not make a genuine effort to reach an agreement
- The mediator did not believe it was appropriate to conduct mediation
- During the mediation process, the mediator determined it was no longer appropriate to continue mediation.
The results of mediation are not legally binding or enforceable, however, they can be formalised by making an application to the Court. If you require assistance to start the mediation process or formalising your agreement, contact our office for a free initial consultation.
Types of mediation
There are a number of ways mediation can be conducted:
Mediation usually takes place between you and your former partner with the guidance of the mediator. It is an informal process where you can identify your issues and work together to resolve them in a mutually beneficial way.
Legally assisted mediation (LAM)
Mediation doesn’t usually involve lawyers being present. However, there are times when it may be appropriate for both parties to have their lawyer present during the mediation process. For example, where there is high conflict between the parties or complex issues need to be resolved. It is up to the mediator to decide whether legally assisted mediation is required.
Mediation usually takes place face to face, however, there may be times where shuttle mediation is more appropriate. Shuttle mediation occurs when it is inappropriate for you to be in the same room as the other person. You will be in a separate room and the mediator will move between the rooms to conduct the mediation.
Family Law Mediation process
Contact Jameson Law for legal advice before initiating mediation
Compile Required Documents
Make sure you have all the necessary documents required for mediation e.g. copies of AVOs, financial documents (for property settlement), copies of your children’s schedules (for partnering matters, etc
Contact a Family Dispute Resolution Service
- Contact a Family Dispute Resolution service to apply for mediation
Other party is put on notice
The Family Dispute Resolution Practitioner (mediator) will notify the other party that you have requested mediation. The other party can consent to mediation or refuse to participate. If they consent, the mediator will notify you of the date. If they refuse, the mediator can issue a section 60I certificate for you to produce to the court if you apply for court orders.
Assessment is conducted
The mediator will conduct an assessment of the matter to determine if mediation is appropriate or if alternative arrangements such as legally aided mediation should take place. The assessment considers family violence, power imbalance, risks to children, psychological health of the parties and anything else they consider appropriate.
During the session/s, the mediator assists the parties to identify issues to be resolved and encourage each party to express and listen to ideas. The mediator ensures everyone is kept on track and has an opportunity to identify their issues and possible solutions
Financial Agreement Drafted
If you reach an agreement, the mediator can assist you to draft your financial agreement for your property matter or a parenting agreement for your parenting matter
If you need to formalise your financial agreement or parenting plan, you can apply to the Court for Consent Orders. Formalising your agreement or plan will result in it being legally binding and enforceable
If Mediation Fails, section 60I certificate
If you do not reach an agreement, the mediator will issue a section 60I certificate. This certificate can be presented to the Court as evidence of your attempt to complete mediation
Court Process Commences
After making an application to the court, you can begin the court process to have your matter resolved. A decision by the court is legally binding and enforceable.
The above is general legal information and should not be considered legal advice. You should speak with one of our family lawyers for legal advice tailored to your specific legal matter. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
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Frequently Asked Questions.
You can prepare for mediation by having an understanding of the process and your rights before you begin. You can do this by getting legal advice from a Family Law expert who will guide you through the process and may attend legally assisted mediation when appropriate. You should also identify the issues that need resolving and know what you want from the start. This will help you to identify what you are willing to accept and what you are willing to compromise on.
Each party is responsible for its own costs. If you attend dispute resolution within the Court (except for a Conciliation Conference), you will not be required to pay a fee.
If you attend a community organisation, you will be required to pay a fee, however, it will be cheaper than attending a private facility.
You should take copies of any documents that apply to your matter. For example, copies of current court orders, copies of AVOs, financial documents (for property settlement matters), copies of your children’s schedules (for parenting matters), etc.
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