How Does A Divorce Mediation Benefit Me? » Pearsons Lawyers

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How Does A Divorce Mediation Benefit Me?

The Family Court understand the importance of appropriate support for separated families and the benefit of resolving disputes outside the court system. In fact, the Family Law Act 1975 Cth (“the Act”) emphasises that parties must make a reasonable and genuine attempt to settle their disputes before initiating Court proceedings for parenting matters.

WHAT IS FAMILY DISPUTE RESOLUTION?

Family Dispute Resolution (“FDR”) is defined as a process where a FDR Practitioner seeks to help separated people to resolve some or all of their disputes.

In broad terms, the role of a FDR Practitioner includes:

  1. providing a safe and independent space to resolve disputes;
  2. identifying and narrowing issues in dispute (whether the matter relates to property or parenting);
  3. listening to the points of view of each party; and
  4. exploring ideas, options and solutions.

WHAT IS THE PROCESS OF FDR?

To commence the FDR process, a party may contact an accredited FDR Practitioner and make an initial appointment. At the initial appointment, the party will be assessed as to whether the FDR Process is appropriate in their case and general discussions about the process takes place.

Thereafter, the other party undergoes a similar initial appointment. If the FDR Practitioner deems it appropriate and safe, a joint session(s) will occur where both parties are given an opportunity to explain their views on the issues at hand.

To ensure that the most value is received from this service, separated families should aim to engage the FDR process with an open mind and be sincerely committed to resolve their matter.

WHAT ARE THE BENEFITS OF FDR?

There are many benefits to FDR:

  1. It is a cost-effective process. Some FDR service providers are government funded and the costs of the process will depend on the party’s income.
  2. It saves you time. The process of FDR tends to be a lot quicker than going through the court system.
  3. It promotes safe and open communication between the parties. This is particularly beneficial in parenting matters to aid with long term decision making for the children.
  4. The parties are in control of their decisions.
  5. It is an impartial environment. Everyone’s views are heard and respected.
  6. It is less stressful than litigation.
  7. Parties are less likely to breach agreements that they make themselves.

DO I HAVE TO PARTICIPATE IN FDR?

Separated families are to make a reasonable and genuine effort to resolve their disputes. This is particularly important when it comes to children’s matters.

According to section 60I of the Act, parties must participate in FDR before they initiate Court proceedings for parenting orders. If the FDR process is proven unsuccessful, then the FDR Practitioner will issue a certificate which enables the party to commence Court proceedings if they wish (otherwise known as a “section 60I certificate”).

According to the Act, a section 60I certificate may certify that FDR was one of the following:

  1. FDR did not proceed as the other party failed or refused to attend;
  2. FDR did not proceed as it was not considered appropriate in the circumstances;
  3. FDR did proceed and the parties made a genuine effort to resolve their issues; or
  4. FDR did proceed and either party did not make a genuine effort to resolve their issues.

In relation to point 2 above, the following are some circumstances where a FDR Practitioner may deem the FDR process inappropriate to conduct:

  1. where a party is unable to negotiate freely due to their emotional, psychological or physical health;
  2. where there is any unequal bargaining power;
  3. where there is a history of family violence, risk of child abuse or safety concerns; and
  4. any other reason at the FDR Practitioner’s discretion.

ARE THERE ANY TIME LIMITS?

According to regulations 26 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 Cth (“the FDR Regulations”), an FDR provider must not give an applicant, nor must an applicant file a section 60I certificate more than 12 months after the latest (or attempted) FDR meeting.

WHERE CAN I FIND A FDR SERVICE?

You can find an accredited FDR Service in your preferred location by searching the Family Dispute Resolution Register.

For more information, please refer to the following FDR services:

  1. Relationships Australia
  2. Relationship Matters, Counselling & Mediation
  3. Mediation Victoria

CAN I FORMALLY RESOLVE MY MATTER THROUGH FDR?

The FDR Practitioner can certainly assist the parties to reach an agreement on parenting and property matters. For example, the FDR Practitioner can assist the parties to develop a parenting plan setting out their children’s arrangements. Some of these arrangements may include changeover locations, arrangements for special occasions (such as birthdays and Christmas), financial support and medical arrangements.

Once you have reached an agreement between yourselves, the agreement can then be formalised through your Solicitors by way of a Binding Financial Agreement (property matters only) or Court Consent Orders (covering property and/or parenting matters).

WHAT ARE THE ALTERNATIVES TO FDR?

Some alternatives to FDR include the following:

  1. resolving the issues directly between yourselves and then taking your agreement to a Solicitor to finalise (by way of a Binding Financial Agreement or Consent Orders);
  2. instructing lawyers to negotiate agreements on your behalf and then document the agreement to give it legal force;
  3. arbitration (where parties present arguments and evidence to an arbitrator who then makes a determination); and
  4. commencing Court proceedings (for property and/or parenting matters).

When property proceedings are commenced in Court, mediation is a compulsory step in the process.

OTHER RESOURCES

We recommend the following brochures on the Family Court website if you require further information on family law mediation:

  1. “Marriage, Families and Separation.”
  2. “Child Dispute Conferences.”
  3. “Case Assessment Conference.”
  4. “Conciliation Conference.”

NEED LEGAL ADVICE?

If you would like legal advice on your family law matter, you are welcome to book a free first appointment with our Solicitors by contacting our head office on (03) 9306 0044.