Family mediation can get called many things; mediation, family law mediation, family dispute resolution, divorce mediation, or family dispute mediation. Essentially all mean the same thing. A couple have split, are divorcing, and need to make plans and agreements and family mediation is where this happens.
Australia wisely includes family mediation (or to give it its formal name, family dispute resolution) in the divorce process. There are numerous benefits to this approach and pleasingly it is enshrined in law and entrenched within the framework of undertaking a relationship split.
Family Law
Family law in Australia is guided by the Family Law Act (1975). Within this is the legal principle of acting in ‘the best interests of the children.’ This notion underpins the entirety of family law within Australia and has a profound impact on how decisions are made and agreements reached.
The Family Court
The Family Court has a crucial role to play in family law. For those parents who are divorcing the court will not provide an opportunity for a hearing unless family mediation has been attempted. While there are a few important exceptions it is a given that the parents splitting will have made a genuine effort to resolve their differences and made suitable parenting plans and financial agreements. From this it is hoped the need for a family court hearing will be eliminated.
Family lawyers and mediators
Family lawyers and family mediators (officially called family dispute resolution practitioners, or FDRP’s) operate in an overlapping space within family law. An astute mediator will usually encourage clients to seek independent legal advice from a family lawyer. Likewise the family lawyer will explain the divorce process and the role of family mediators. They may also recommend, suggest, or refer clients to a mediator.
Importantly, family mediators cannot, by law, offer legal advice.
The Family Mediator’s Role
When it comes to family law and mediation you can be assured your family mediator fully understands their role within it.
Family dispute resolution practitioners have post-graduate qualifications, are registered with the Australian Attorney-General’s Department, and are recognised experts in the mediation field.
They are able to manage the logistical and practical aspects of family mediation as well as the more nuanced aspects of the mediation process such as monitoring power balances, client emotional states, identifying referral pathways, the totality of case management with external agencies, addressing ethical considerations, and decision making based on family law principles and regulations.
Put simply, the family mediator’s role is to manage the family mediation process while clients provide the content of the process.
The Family Mediation Process
The process of family mediation is a relatively simple one and is able to be engaged with in a range of ways.
The Purpose of Family Mediation
Simply put, family mediation is designed to have couples work collaboratively to reach agreement on how the children will be parented and/or financial and property arrangements needing to be addressed.
Both types of agreement reached are based on the principle of acting in the best interests of the children as the central focus.
By successfully mediating the clients involved can avoid a Family Court hearing and can minimise their legal costs.
Bluntly put, family mediation saves time and money and has parties consult and collaborate rather than ‘fight’ in court and have decisions on the above made by others.
Family Mediation Formats
Mediation will usually involve a family mediator meeting with each party separately to hear their story, background, and details about family life, parenting, the relationship, and the reasons for splitting. Most importantly, the family mediator will encourage discussion about the children who will be impacted and the needs they may have going forward.
From this point mediation takes place with parties encouraged to outline the issues they seek to resolve alongside possible solutions. The mediator helps the parties maintain a focus on the children and not on personal feelings or issues between the parent parties.
Ongoing facilitation of issues and solution ideas continues. Reality testing is utilised and the ebb and flow of negotiation continues, often for many hours, until an agreement is reached.
The agreement is neither a ‘win’ or ‘loss’ for parties. It is a win for the children.
It is hugely important to note that while the above process is fairly simple it can be adjusted to suit the parties involved.
Parties can have their lawyers attend to provide advice to clients. Shuttle mediation, whereby the clients are in different rooms can be facilitated, Resolutions Australia speciality, online mediation, can be used to support feelings of security, surety, and confidence, support people and/or translators can attend. In effect this means that clients are in the best possible position to mediate and develop plans successfully!
Exceptions to the Family Mediation Process
At any point in the family mediation process the mediator can make the decision to terminate the process. These situations can occur for a number of reasons. Examples of reasons not to mediate, or continue to mediate, include one of the parties failing to respond to a family mediation invitation, family violence issues, having the capacity to mediate e.g having health, mental health, or diminished cognition issues, failing to make a genuine attempt to mediate, or failing to adhere to the instructions of the mediator.
When one of these situations occurs it is likely that issues will need to be resolved following an alternative pathway based on the advice of a client’s family lawyer.
The Outcomes of Family Mediation
A number of very positive outcomes of family mediation are anticipated and these can involve a range of factors both immediate and longer term.
Parenting Plans
Mediating Parent Plans is the most common use of the family mediation process. These collaboratively developed plans help ensure that both parents have a shared understanding about what’s in the best interests of the children impacted. The plans provide plenty of practical, nuts and bolts guidance for how parenting will happen. These plans can include parenting time details, pick ups and drop offs, methods of communication, how major parenting decisions will be made, handling special occasions or family holidays, dealing with school matters… the list is potentially limitless and based around the current and future needs of the children.
Importantly, while the Parenting Plan is a moral document and not a legal one it can form the basis of a Parenting Order via the Family Court. This helps ensure that should one parent decide to not follow the plan the other parent can seek resolution through a legal court order. And the court will usually use the Parenting Plan as the basis for this.
Financial and Property Agreements
These agreements are the other significant area mediated between divorcing parties.
These agreements are based on a full and frank disclosure of property and financial assets coupled with the future needs of the children and how best to meet these.
Section 60i Certificates
One outcome of the family mediation process is the issuing of a Section 60i certificate. These are issued when mediation hasn’t been successful. There are categories on the certificate indicating why the mediation wasn’t attempted or wasn’t successful.
These certificates can then be presented to the court to help inform legal next steps.
Family Court
For both positive and negative reasons the family court may be an outcome for mediating parties.
Positively speaking, if the parties have successfully reached agreement they can advise their respective lawyers to approach the court and have these agreements turned into legally binding orders. This doesn’t have to be done, rather, it provides a legal backstop to ensure the agreements are adhered to.
Unfortunately, if a family mediation hasn’t been successful parties may need to have their lawyers support them in having a magistrate at the Family Court decide on issues the couple couldn’t agree upon. This can be a costly, lengthy, stressful exercise!
Family Mediation Costs
The cost of family mediation can vary markedly for several reasons.
Firstly, government funding is provided to not-for-profit organisations to provide family mediation. This substantially reduces client costs. This comes with caveats however. The not-for profits usually have long waiting lists, mediation is usually blocked for just 2-3 hours, and you may have to deal with an intake practitioner and then a different mediator who, in a busy work day, only had a few minutes to read over your case notes. A cut price option far from the ideal.
Lawyer run family mediation. This is where a lawyer facilitates the mediation. These mediations can be effective however there may be negatives. The cost is often substantially more than a private mediation. This is because clients will likely be charged at a lawyer’s hourly rate. Also, these family mediations can tend to become adversarial. This is in part due to the nature of the legal profession i.e the lawyer is acting as mediator as opposed to a mediator mediating. At Resolutions Australia we’ve heard far too many anecdotes about lawyers mediating who essentially end up turning the process into a pseudo court case or try to speed the process up by offering their own ideas and solutions then having parties negotiate around these. The antithesis of the collaborative approach desired!
Thirdly, and this is where Resolutions Australia finds a home, is the private family mediation provider.
Costs usually range between $1600 (where we are!) up to $5000. Private providers should ensure you have the time to effectively resolve your issues. That service is timely so you’re not waiting weeks. That you only deal with one registered family dispute resolution practitioner (mediator) and that you feel supported and informed throughout the process.
The Benefits of Family Mediation
In examining the benefits of family mediation there are several factors that most clients can identify immediately.
Firstly, cost. To mediate successfully ensures that any legal costs are kept to a minimum. The more that clients can agree in mediation, the lower the legal costs will be to them. No protracted court cases or lengthy back and forths between lawyers.
Clients usually identify the timeliness of mediation as being of enormous benefit. When divorcing clients often want to be done and get their new normal underway. Family mediation provides this opportunity. Rather than wait months or years to attend a Family Court hearing a mediation can be scheduled and completed within days.
Mediation also helps take the emotional heat out of divorcing decision making. Parents are acting in the best interests of the children, not themselves, and are expected to act collaboratively not adversarially. Another benefit that we see at Resolutions Australia, stemming from mediation rather than litigation, is improved long-term communication and parenting skills from clients. This has an immense impact on the children of the relationship!
When examining family mediation it is easy to understand why it is such a vital and positive contributing factor in the family law realm. At Resolutions Australia we encourage all potential clients to recognise the valuable role we can play in supporting them through a changed family situation, and make contact.
