Mediation and Family Dispute Resolution

Mediation

Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternative approaches, and endeavour to reach an agreement.The mediator must remain impartial (i.e. unbiased) throughout the process.A good mediator will help the parties to raise all necessary issues in a calm and controlled environment, and do their best to steer the parties towards their own negotiated agreement.Unlike a Judge in court, it is not the mediator’s role to make decisions for the parties.Any decision-making is left entirely up to the people in dispute.Additionally, because mediation is a facilitative process, a mediator provides procedural assistance in managing the dispute resolution process.

In parenting disputes it is now compulsory for most parties to make a genuine effort to resolve issues at FDR before an application for parenting orders can be filed with the court.  The main exceptions to compulsory FDR relate to situations involving family violence, child abuse or urgency.  FDR services are provided by some public organisations (such as the Family Relationship Centre and Relationships Australia) and by private mediators.  In each case, it is important that the mediator is a registered family dispute resolution practitioner.  This allows them to issue a certificate (known as a section 60I certificate) at the conclusion of an unsuccessful mediation about children.  That certificate is evidence that a genuine attempt was made by the parties (or at least one of them) to resolve their dispute without resorting to court litigation.  Once you have a section 60I certificate, you can make an application to the court for parenting orders.

Whereas FDR regarding parenting disputes is more-or-less compulsory for all parties before they can commence court proceedings, FDR regarding property disputes is not compulsory before court proceedings, although pre-action procedures encourage FDR.  Most parties like the idea of avoiding potentially costly and lengthy litigation by attempting to negotiate a property settlement.  Mediation is one way of trying to achieve this outcome. 

Most FDR services provided by public organisations only involve the parties and the mediator i.e. lawyers do not normally attend these forms of FDR.  However, with private mediation, lawyers generally accompany their clients to mediation, which can be beneficial because each party can obtain legal advice from their lawyer during the FDR and thus sometimes overcome hurdles that might otherwise stand in the way of an agreement. Additionally, your lawyer can help “brainstorm” possible alternative solutions with everyone involved, which may lead to agreements which are mutually acceptable to the parties. 

Our Queensland Law Society Family Law Accredited Specialist lawyer, Lindsay Woods, a former mediator himself, has a lengthy history in representing clients at FDR and is a staunch supporter of FDR in the right circumstances because he has seen many family law disputes successfully resolved through mediation, resulting in formal settlements which were timely, much less expensive than litigated matters, and which generally had happier endings because the parties had more control over the process and the final outcome.  Dispute resolution through FDR is enhanced where there is a reasonably high level of willingness by the parties to solve their problems together with respect and dignity, as difficult as that is sometimes in trying times. 

Lindsay will assist you to prepare for FDR by thoroughly explaining the process, helping you identify issues which need to be addressed between you and your spouse/former partner, and exchanging relevant information and financial documents with the other side prior to FDR.  If attending FDR with you, Lindsay will listen to and consider all items on each party’s agenda, provide legal advice during FDR, help you explore ideas and options raised, and assist the mediator and parties to record in writing any decisions or agreements made during FDR.  If any negotiated agreement is worthy of converting into a document for the purpose of formalising the agreement under relevant provisions of the Family Law Act, whether the agreement relates to parenting or property issues, Lindsay will prepare those documents or review documents prepared by the other lawyer to ensure they are clear and accurate and protect your interests. 

The potential advantages of FDR outweigh the potential disadvantages.  Successful FDR will see your dispute resolved far quicker and far more cost-effectively than it will be through court proceedings. One downside to FDR – where private mediation is used – is that it will add to your legal expenses if FDR proves to be unsuccessful in resolving the dispute.  

Arbitration

Arbitration is another form of dispute resolution which is gaining popularity in family law matters.  The rise of arbitration is mainly due to the ever-growing queues in the court system, where it is not uncommon for cases to wait 2 to 3 years for a hearing date. 

Arbitration is a process in which the parties to a financial dispute present arguments and evidence to a neutral third party (the arbitrator) who makes a binding determination (usually called “an award”) to resolve the dispute.  Arbitration – as a possible course – usually arises during court proceedings when lengthy delays in having a Judge hear a case and make a judicial determination become a reality.  If both parties in a current court case consent to adopting arbitration as a means of resolving their dispute, the court can make an order referring the proceedings to an arbitrator.  When the court makes such an order, it usually adjourns the proceedings to allow time for the arbitration process to be completed.