What is mediation?
Mediation is a process in which a mediator assists participants to make their own decisions to reach an agreement in relation to disputes, conflicts or differences between them. It is a creative, solution-focused approach that can help to identify and communicate the needs, interests, issues and concerns of each participant, explore possible solutions and reach a mutually acceptable agreement. Mediation does not deal with the emotional side of relationships as counselling might, rather, the focus is on reaching an agreement on specific issues.
What is a mediator?
A mediator is a dispute resolution practitioner who uses recognised skills to assist mediation participants to identify the issues of concern and explore options for resolving those issues. The mediator is both neutral and impartial. The mediator uses the mediation process to help the participants understand each other’s point of view. Rather than imposing a solution, the mediator helps the participants to generate their own solutions.
What is Family Dispute Resolution?
Family Dispute Resolution is a particular form of mediation in which an accredited Family Dispute Resolution Practitioner takes on the role of mediator to assist people experiencing difficulties resolving their family dispute.
The mediator attempts to improve the method and quality of decision making between the people so they can reach an agreement that is satisfactory to them both. The mediator is impartial and the participants stay in control of what is discussed as well as the details of any agreement.
The issues discussed can be wide ranging but may include children, financial, child support, and maintenance and property issues.
What is a Family Dispute Resolution Practitioner?
A Family Dispute Resolution Practitioner is a mediator registered by the Attorney General’s Office to facilitate Family Dispute Resolution. The practitioner remains impartial and helps participants to discuss the topics, issues and concerns that are of importance to them. Mediators do not make decisions about the issues being discussed – the decisions about the issues are made by the participants by agreement.
Why would I take part in Family Dispute Resolution?
Family Dispute Resolution can help to resolve disputes in an informal environment without the need to go to court. It is a creative, solution-focused approach in which the participants explore various ideas and options with the aim of reaching an agreement.
Family Dispute Resolution provides an opportunity for participants to voice their needs, interests and concerns in an environment in which they can feel “heard” by the other person.
Family Dispute Resolution can help to resolve matters faster and is often cheaper and less stressful than going to court. Unlike the court process, participants remain in control of the issues that are discussed and the details of any agreement.
In summary, the advantages of Family Dispute Resolution include:
- Timely services
- Improved communication
- Mutually agreeable outcome.
WHAT DOES THE PROCESS INVOLVE?
What does the process involve?
Every matter is different, though the process typically involves the following:
- Someone enquires about Family Dispute Resolution and that person makes an appointment for an initial private session;
- Following attendance at an initial private session, the Family Dispute Resolution Practitioner contacts the other person or people involved and invites them to consider taking part in Family Dispute Resolution;
- If the other person is willing to take part in Family Dispute Resolution they make an appointment for an initial private session;
- If the matter is suitable for mediation, a time and place is arranged for the participants to attend the Family Dispute Resolution meeting.
How long does the process take?
Timing varies depending on the availability of the various people involved. You can generally expect your initial private session to occur within 1-2 weeks of your enquiry, although it can often happen much faster. The entire process can happen within a matter of a few weeks if all participants are keen to proceed. Otherwise, it can take anywhere from three weeks to approximately five weeks. If your matter is urgent please advise during your initial enquiry so we can give you an indication of how quickly you might be able to be seen.
WHAT IS THE INITIAL INTAKE SESSION?
What happens at the initial intake session?
At your initial intake session you will meet the mediator on your own and be given further information about mediation. The mediator will prepare you for mediation. You will be given the opportunity to provide background information on your matter and the matter will be screened to ensure it is suitable for mediation. You will also have the chance to ask any questions.
What do I need to bring with me to the initial private session?
If any current Court Orders are in place you may wish to bring these with you or email them through in advance. Other documentation deemed relevant during the course of your initial private session can be emailed or posted after your session.
What happens in a Family Dispute Resolution meeting?
Each person has the opportunity to raise the topics, issues and concerns that are of importance to them and an agreed agenda for the mediation is established. The topics are discussed by the participants, with the assistance of the mediator, to explore into each of the participant’s needs, interests, issues and concerns as well as the needs and interests of any children and any issues or concerns relating to the children. Ideas and possible solutions are discussed until such point that an agreement is reached. The focus of the discussion is on problem solving in order to reach an agreement that both people can accept. The participants stay in control of what matters are discussed during the process as well as the details of any agreement reached. Family Dispute Resolution does not deal with the emotional side of relationships as counselling might, rather, the focus is on reaching an agreement on specific issues.
What is the role of each person in mediation?
What is the role of the mediator?
The mediator shapes and adapts the process of mediation to facilitate communication between the participants throughout the various stages of the process. The mediator is both neutral and impartial. The mediator uses the Family Dispute Resolution process to help the participants understand each other’s point of view. Rather than imposing a solution the mediator helps the participants to generate their own solutions. The mediator may also assist the participants to consider the reality and effect of particular options so that they can be as objective as possible in their decision making. The mediator does not give legal or other professional advice to participants.
What is the role of the participants?
The participants are responsible for the content of the mediation, coming up with possible ideas for resolution and determining any decisions that are made. In mediation each participant should listen carefully to what the other participant has to say, identify what issues need to be discussed and agreed, discuss what is important to each participant about each of the issues identified, generate options that could result in the issues being resolved, and have an aim to reach an agreement. Participants should remain future-focused and solution-focused and be prepared to consider a range of possible options for resolution.
What is the role of lawyers and non-legal support?
Lawyers and non-legal support people follow the direction of the discussion as determined by the participants and managed by the mediator. They engage in the process by providing support to the participants, assisting the participant to fulfil their role in the mediation and in the case of lawyers, to legally advise the participant. It is not the role of the lawyer or non-legal support person to speak on behalf of the participant if that person is capable of doing so themselves.
Can I bring my lawyer or other support person with me?
You can bring your lawyer or other support person with you to the initial intake session if you wish to.
It is possible to request that your lawyer or other non-legal support person attend the joint mediation meeting with you. Such requests will need to be considered and agreed to in advance of the Family Dispute Resolution meeting occurring.
Is the meeting where I attend with the other participant able to be discussed in subsequent Court proceedings?
Generally, the contents of any mediation meeting with the other participant cannot be talked about in a subsequent court process. There are some exceptions to this which include disclosures related to child abuse or a risk of child abuse in certain circumstances.
Are agreements reached at Family Dispute Resolution enforceable?
If you reach an agreement and want to make the agreement legally enforceable, further steps will need to be taken by you to arrange for the necessary documents to be drafted. At mediation you can discuss which participant or whose lawyer might assist with drafting the necessary documentation. You can apply to the court for the agreement to be made into a Consent Order.
What if I wish to obtain legal advice?
You can contact your lawyer who will provide you with independent legal advice. It is not the role of the mediator to provide you with legal advice.
What if the other person lives in another State or country?
It is possible for private intake sessions and Family Dispute Resolution meetings to take place by phone or video conference technology, such as Skype. Please contact us to discuss your matter.
What is a parenting plan?
A parenting plan records the agreed arrangements regarding children. A parenting plan removes the need for separated parents to initiate court proceedings in relation to children’s issues because they have mutually agreed on the arrangements.
To be recognised by a court a parenting plan needs to be presented in writing and signed and dated by both parents. It must have been reached without threat, duress or coercion.
What does a parenting plan cover?
A parenting plan can cover anything relevant to the care, welfare and development of the child or children involved. It might include details of where the child lives, time spent with the child, schooling and communication among other things.
How does a parenting plan work?
A parenting plan allows parents to reach mutually agreeable arrangements for the parenting of their children. A parenting plan is voluntary so it can be changed as required, subject to the agreement of both parents.
A parenting plan is not enforceable by law, whereas a parenting order is. If a matter does reach court, the court will take the most recent parenting plan into consideration. The court will also take into consideration the degree to which each parent fulfilled their obligations in the parenting plan.
Parenting arrangements outlined in a court order dated 1 July 2006 or later can be changed by the parents via a parenting plan (except where the court order states otherwise). This makes it easier for parents to change a parenting plan without the need to return to court.
Are people required to attend Family Dispute Resolution?
Is Family Dispute Resolution compulsory?
Mediation is voluntary and you cannot be compelled to attend. However, the law is such that it is not usually possible to apply to a family law court without a 60I Certificate issued by a registered Family Dispute Resolution Practitioner. This requirement effectively makes it compulsory to attempt Family Dispute Resolution before applying to the court in relation to children’s issues. In limited circumstances it is possible to apply to the family court to be exempted from attempting Family Dispute Resolution, for example, in cases of urgency or where family violence has occurred. This applies to new applications to the court as well as applications made in relation to existing parenting orders.
What happens if the other person is not willing to mediate?
Following your initial private session there is a process that needs to be undertaken to invite the other person or people to attend. This process includes contacting the other person or people at least two times and providing them with certain information. If the invitation process has been undertaken and the other person has not accepted the invitation, then it may be that you end up with a 60I Certificate.
I received a letter inviting me to Family Dispute Resolution. What happens if I do not accept the invitation to attend?
Mediation is voluntary and you cannot be compelled to attend. If you do not attend mediation, it is possible that the initiating person will be issued with a 60I Certificate.
If you do want to mediate but cannot accept the invitation for financial reasons, in some cases the people involved may come to their own arrangement with regard to the proportion of fees each person pays.
Section 60I Certificates?
What is a 60I Certificate?
A section 60I Certificate is a certificate issued in relation to section 60I of the Family Law Act. 60I Certificates allow people to file an application relating to children with the court. It is not usually possible to file a family law court application relating to children without a 60I Certificate although there are some limited exceptions. Such certificates can only be issued by those registered with the office of the Attorney General of Australia to do so. 60I Certificates are only issued in relation to children’s issues.
The types of certificates issued can include one of the following:
- That one person did not attend mediation
- That both participants made a genuine effort to resolve the matter
- That the matter was not appropriate for mediation.
A court may make costs orders following the issue of a 60I Certificate in certain circumstances, if appropriate.
Can Kerrie Harms issue a 60I Certificate?
Kerrie is registered with the Attorney General of Australia’s office to issue 60I Certificates.
What happens if we attend mediation and cannot reach an agreement?
If you have not yet reached an agreement towards the end of your Family Dispute Resolution meeting, you will talk about what might need to happen to reach an agreement. Mediation is often an ongoing process and you may need more than one session to obtain an agreement. In certain matters where it is not possible to reach an agreement, you may receive a 60I Certificate.
How much does it cost?
Family Dispute Resolution can help to resolve matters faster and is often cheaper than going to court. Please send through an enquiry and we will respond to you with a full outline of the possible fees involved.
Unless otherwise agreed, the standard fee terms are that each person meet their own share of the costs. Each participant pays for their own initial private session with the cost of joint mediation meetings shared equally. In some cases the people involved may come to their own arrangement with regard to the proportion of fees each person pays.
Payment is required on the day of each session.
What do I do if I have a compliment, suggestion or complaint?
Please contact Kerrie Harms. You may also contact the Resolution Institute at www.resolution.institute
I have further questions. Can I contact you?
Yes – Please complete the contact form or call 0401 920 841 (business hours phone service only, no SMS available).