Mediation Context

Please find below further information about the process and frameworks mediation services are offered. Our mediation services are designed to facilitate effective communication and resolution between parties in conflict. We provide a neutral environment where trained mediators guide discussions, helping to reach mutually beneficial agreements. Whether it's for family disputes, business conflicts, or community issues, our goal is to promote understanding and collaboration.

Click Here

What types of issues can I bring to FDR?

Parenting during and after Separation
Most FDR mediations are between people who were in a relationship and have now separated. You can participate in FDR at any stage in the process of separation from the very beginning when you are discussing moving out to getting help with co- parenting decisions years after.
You can discuss things like who the children live with, who they spend time with, their short and long-term care, education, and developmental needs. How children’s financial needs are taken care of and communication strategies between you and their other parent are also common issues for discussion.
Grandparents and other family
Family Dispute Resolution can also be between other family members such as grandparents or aunts and uncles who were involved in children’s lives before the separation but are finding it difficult to spend time with the children afterwards.
Parenting Agreements can be reached between extended family and a parent with whom the children are living.
Property Settlement Agreements
The other major type of mediation that happens in Family Dispute Resolution is property settlement agreements. Family Dispute Resolution practitioners are qualified to assist with working out your property settlement. If your family situation is very complex, they can bring in your legal advisors, a financial advisor, or others to help you with your decision making or to understand if one of you is not very familiar with dealing with financial issues.
Finances
You can talk about financial support and other issues related to money that don’t relate to your property settlement such as school fees, financial support while retraining to be financially independent and so on.

When is FDR appropriate?

FDR is only appropriate if you are both free to negotiate without fear that you may be harmed or otherwise punished for decisions made. If you are receiving threats or there is a history of violence or abuse, mental illness, substance abuse or other concerns please tell your Family Dispute Resolution Practitioner. They will help you to make decisions about your safety. It is important that you can express your needs and make informed decisions during FDR. If you have any concerns about the behaviour of the person you are considering participating in FDR with, please discuss them with your FDR practitioner.

Assessing if FDR is appropriate

Before any joint sessions the FDR Practitioner will meet with you individually to assess whether FDR is appropriate and help you prepare. If you or the other person have concerns about FDR this is a good time to discuss them. We have high conflict services available if participating in face to face mediation would be too stressful and/or if going to the same physical place as the other person may not be safe.

Your FDR Practitioner will discuss the other options available for you if they decide that standard FDR isn’t suitable. High Conflict FDR and Mediator Facilitated Negotiation are other options.

No matter the form FDR takes you always retain your right to determine if you will agree with any of the proposals discussed and no commitment is made unless you both agree.

Voluntary FDR

You may withdraw from FDR at any time. The practitioner may also suspend or terminate the process at any time if he/she considers that it is no longer appropriate.

FDR and Family Violence

Family violence means violent, threatening, or other behaviour that coerces or controls a family member or causes a family member to be fearful. In determining what is in a child’s best interests a Court must give greater weight to protecting the child from harm resulting from family violence, abuse, or neglect. Likewise, in Family Dispute Resolution your practitioner has an obligation to consider if your child will be safe from violence, abuse or neglect and may ask questions about their care and wellbeing during the mediation process. They also have a duty of care to parents to help keep you safe and will not allow abusive behaviour to occur in Family Dispute Resolution.

Pre-Mediation Risk Screening

You will always start FDR with a pre-mediation session. In Pre-Mediation, each person will meet separately with the FDR practitioner. These meetings are confidential, and they will not speak with the other person about what you have discussed with them. One of the major aspects of pre-mediation is to decide if FDR is appropriate. If not, they will help you to decide your next steps and help you to review your safety plan if you are currently fearful of family violence.

If FDR seems appropriate, they will help you to prepare for the mediation. If you have not had legal advice or have other questions that you need to see another professional about, they will help you with referrals to appropriate services or private practitioners. Pre-mediation meetings may be by Video Mediation, over the phone or in person if we refer you to a practitioner for face to face services. If you want a detailed Parenting Agreement suitable for being made into enforceable Consent Orders, they will help you to consider all the long and short-term decisions needed for detailed parenting arrangements for your children.

Abuse or Harm?

The FDR practitioner must disclose any communication or admission made they reasonably believe that they are required to disclose under any Federal, State or Territory law that they must comply with.

Under the Family Law Act 1975 an FDR practitioner must report to a child welfare authority if they have a reasonable basis for suspecting child abuse or risk of child abuse. They may also report ill-treatment or neglect of a child or exposure of a child to psychological harm.

Abuse in relation to a child is defined in the following way in the Family Law Act 1975.

An assault, including sexual assault, of the child
Sexual exploitation
Causing the child to suffer serious psychological harm including but not limited to when the harm is caused by the child being subjected to or exposed to family violence.
Serious neglect

Your FDR practitioner may disclose information if they believe that is it necessary to keep someone safe or prevent damage to property.

Legal Advice

Legal advice gives you information about what the range of outcomes a judge in court might consider fair. In family law there is not a formula or other simple way of working out what should happen. Every situation is different and there is a lot of uncertainty about going to court. That is why recommends retaining decision making powers in your own hands rather than going to court. Legal advice gives you an understanding of the best- and worst-case scenario if you can’t reach an agreement. Always ask your lawyer about the costs of other courses of action such as getting your lawyers to negotiate for you or going to court.

As a rule mediation is always going to be lower cost and a more empowering process as you get to decide what you will and won’t agree to. An FDR practitioner can provide you with legal information about how to make your agreement legally enforceable, your obligations regarding full disclosure, information about “best interest of the child” and so on. They can’t provide you with independent legal advice, even if they are a lawyer. This is because lawyers only work for one person while a mediator works for you both. It is very important that you provide the lawyer with the information that they need to be able to provide you with good quality legal advice.

When should I get legal advice?

It is often helpful to come to the pre-mediation session first so that the FDR can help you to work out the questions you need answers to from the lawyer. We also recommend that you get legal advice before you sign an agreement or lodge consent orders if you are using the do-it-yourself process available through the court. During FDR, your practitioner will help you consider the pros and cons of options under consideration, but they will not tell you what you should do.

Confidentiality

FDR is a confidential process. Unless there is a specific requirement or permission to disclose information, the mediator will keep your information safe. You can authorise the FDR Practitioner to provide specific information to someone else if that is helpful for you but only your information unless both authorise it for example sending a copy of the agreement to your lawyers.

Inadmissibility

If something is inadmissible it can’t be used as evidence in court. Nothing that is said during FDR is admissible evidence. This also applies to anything said by or in the company of a professional to whom you or your child may be referred to during the dispute resolution process. The exceptions to this are if a Court orders an FDR practitioner to disclose information about an admission by an adult or disclosure by a child about abuse or the risk of abuse.

The Parenting FDR Process Structure

The joint FDR Session follows a structured process to make sure that you both can have your say and be heard and can make considered decisions.

Mediators Opening Statements - The mediator establishes the ground rules and expectations for the mediation, reminds you both about confidentiality and gets your agreement to proceed
Your Opening Statements – you will each have a chance to speak without the other person interrupting you. In this time, you will be asked to explain the parenting issues you hope to resolve in the mediation. The mediator may ask a few questions and summarise what they hear to make sure they understand you properly.
Mediation Agenda – Based on your opening statements the mediator will create an agenda. They will check the agenda with you and ask you to decide the order you would like to talk about the agenda items.
Exploration – the exploration stage is a chance for you to talk to each other about the agenda items. The purpose of this stage is to understand your points of view and what you think should happen. We find that once you understand each other’s points of view you will be ready to start considering options to resolve the issues.
Option generation and problem solving – in this part of the meeting you will propose and consider options for resolving the issues. Some options won’t be agreed to, and others may form the basis for an agreement.
Private Sessions – at some point the mediator will check in with both of you in a confidential private session. You can also ask for a break at any point in the process.
Negotiation – the mediator will help you to negotiate towards an agreement asking you to consider the detail of how your proposals might work in the real world.
Agreement - any points of agreement that are reached will be written down in consultation with you identifying Who will do What and When. We cannot guarantee that you will reach agreement.
Conclusion – the FDR practitioner will discuss your next steps. You may want another FDR session. You may have reached a “trial agreement” and want to test it for a trial period. You may be ready to lock in the agreement by making it into a Parenting Plan or Consent Orders. Or you may decide that you can’t reach your own decisions and want to go on to another process such as the family court.

Section 60i Certificates

If you can’t reach agreement regarding parenting issues you can ask your FDR Practitioner for a Section 60i Certificate. This certificate allows you to apply to the Family Court to seek Parenting Orders. The certificate is valid for 12 months from the date of issue.

Refusing to participate in FDR?

Please be aware that if you refuse to participate in Family Dispute Resolution in relation to parenting without a valid reason the FDR practitioner is obliged to issue a Section 60i Certificate indicating that you have refused to participate in FDR. In addition, if you attend FDR and do not make a genuine effort to resolve the dispute the FDR is obliged to issue a Section 60i Certificate indicating that. If you participate with a genuine intention of resolving the dispute but are not able to the FDR will issue a certificate indicating that you have made a genuine effort.

What does the type of certificate matter?

The court may consider the type of Section 60i Certificate you have when considering making an order under section 13C of the Family Law Act 1975. This may include referring you back to FDR or awarding costs against a party under section 117 of the Act. If you have a genuine reason for not wanting to participate in Family Dispute Resolution, please talk to our practitioner so they can understand. They can issue a Section 60i Certificate to indicate that FDR is not appropriate.

What are my options if they refuse to mediate?

The Section 60i Certificate means that either of you can go to court to seek a court order regarding your children. You may be able to try mediator or lawyer facilitated negotiation before going to court. It depends on your circumstances so get legal advice. Going to court may be expensive and generally orders of the court are less complied with than an agreement that parents reach themselves.

Property Family Dispute Resolution

The purpose of Property mediation is to help you to reach a financial settlement following the end of a de facto relationship or marriage. In a Property FDR, some of the rules that apply to family court also apply for example the obligation to make Full Disclosure of your financial situation.

Full and Frank Disclosure

Under the Family Law Act 1975 you must disclose all assets and liabilities even assets that are not in your private name but which you are a beneficiary of.

That means companies that you are a shareholder of and trusts that you are a beneficiary of. You must also disclose recent disposals of property or other assets.

Time Limits?

Unlike parenting agreements which can be revisited, revised, and changed property agreements need to be sorted out within a reasonable time of your relationship ending.

If you were married, then it should be within twelve months of your divorce.
If you were not married, then it is two years from your separation.

If a longer time has gone by since your separation or divorce you can still negotiate an agreement, but both would have to agree to negotiate. If one refuses to mediate, then the other would have to ask permission of the court for it to consider an application for property orders. The judge could refuse if they consider it would not be fair to allow you to start a court case, so it is best to sort out your property settlement once you are sure your relationship is at an end.

What’s different about Property FDR?

The Property FDR process is to decide on your property settlement although sometimes financial issues are talked about as well. The joint FDR Session for property follows a different structured process as there is a considerable amount of information about your asset pool that should be worked out before you can begin looking at what sort of property settlement is fair for your family.

The Seven Steps

Mediators Opening Statements - The mediator establishes the ground rules and expectations for the mediation, reminds you both about confidentiality and gets your agreement to proceed
Determining the asset pool – the mediator will use a tool to collect information about your assets and liabilities and help you to discuss the best way to determine their values. If you don’t agree on values, they will help you to negotiate how to agree such as getting an independent valuation.
Considerations – the next step is to discuss the considerations. This includes the considerations that a judge would consider as well as anything that is unique to your situation. Each of you will have the opportunity to explain your perspective.
Exploration of options – the mediator will then ask you for your proposals. How to distribute some of your assets may be clear to you both, such as cars, tools, and household items. Others will require looking at a variety of options. Your mediator will help you to discuss the various proposals.
Needs and Interests – how the proposals would impact you and your child will be discussed and points of agreement noted by the mediator.
Negotiation and agreement – the mediator will help you to consider your options and negotiate towards an agreement. Any points of agreement that are reached will be “reality tested” to see if you both think that they will be workable in the real world after the mediation.
Conclusion – at the end of the mediation session the FDR practitioner will work with you to get the wording of your agreement right and discuss with you next steps. You may have only dealt with some of the issues and decide you need another session, or you may be ready to lock in the agreement by making it into a Property Consent Order or Binding Financial Agreement.

Considerations in Property

If your property matter went to court the judge will be applying a set of general principals in determining what is fair and equitable. The general principals are the same, regardless of whether you were in a marriage or de facto relationship except for Western Australia where the rules regarding defacto's and superannuation are different. There is not the ability to apply for a superannuation split if you were not married in Western Australia.

Contributions

Contributions that each brought into the relationship: the court looks at what you each had at the start of the relationship and how long you have been together.
Direct financial contributions during the relationship: this is money that you each earned through wages and salaries.
Indirect financial contributions by each party: these are money that you were given by family and other gifts, inheritances etc.
Non-financial contributions: these are contributions such as caring for children and homemaking

Future Needs?

Future requirements: future requirements consider your current and potential earning capacity, age, health, financial resources, care of children and ability to earn income. You should talk to a lawyer about these factors when you get legal advice.

Were your contributions have been roughly equal coming into the relationship? How long have you been together?
Were your financial and non-financial contributions roughly equal during the relationship?
Are your future needs similar or is one of you less able to earn income due to care of children, earning capacity, age, illness, or some other factor?
Does the current asset pool fairly represent the assets and liabilities of the relationship? If there have been major changes shortly before
If your property matter went to court the judge will be applying a set of general principals in determining what is fair and equitable. The general principals are the same, regardless of whether you were in a marriage or de facto relationship except for Western Australia where the rules regarding defacto's and superannuation are different. There is not the ability to apply for a superannuation split if you were not married in Western Australia.

The considerations

Contributions

Contributions that each brought into the relationship: the court looks at what you each had at the start of the relationship and how long you have been together.
Direct financial contributions during the relationship: this is money that you each earned through wages and salaries.
Indirect financial contributions by each party: these are money that you were given by family and other gifts, inheritances etc
Non-financial contributions: these are contributions such as caring for children and homemaking

Future Needs

Future requirements: future requirements consider your current and potential earning capacity, age, health, financial resources, care of children and ability to earn income.
You should talk to a lawyer about these factors when you get legal advice.
Were your contributions have been roughly equal coming into the relationship? How long have you been together?
Were your financial and non-financial contributions roughly equal during the relationship?
Are your future needs similar or is one of you less able to earn income due to care of children, earning capacity, age, illness, or some other factor?
Does the current asset pool fairly represent the assets and liabilities of the relationship? If there have been major changes shortly before

Do I need an Enforceable Agreement?

That depends. In the case of property almost always the answer is yes. You will usually need a Court Orders to refinance a loan to buy your former partner out and to avoid paying stamp duty and you will need Orders for a super transfer.
For children it really depends. If you are managing to remain respectful of each other and putting your children’s needs first, then you probably won’t need orders. A parenting plan (dating and signing your agreement) is usually all you’ll need.
You will probably be getting together often to discuss issues and when things change you can update your parenting plan easily.
If you are higher conflict or there have been threats or past incidents where your agreements have been broken getting enforceable orders may be wise.
Be aware that an enforceable agreement doesn’t mean that the police will automatically act on it. For example, taking your agreement to the police station doesn’t mean they will go and recover a child who hasn’t been returned at the time indicated in your order.
Unless there is a genuine safety issue you will probably have to return to court to have an enforcement order such as a recovery order made if a court order is breached.
This is because the police can’t know if there is a genuine reason for breaching the orders such as a threat to the child’s safety. They will usually want the court to decide before they enforce the orders due to the stress that children are likely to feel by being taken away from a parent by the police.

More additional information will be provided that further assists you to fully understand the mediation process during your pre assessment consultation by our mediators.