6 common questions about mediation, answered
Mediation is when two conflicting parties in an argument come together with an impartial mediator, whose role is to impartially facilitate discussion and negotiation. The aim is to find a resolution for their dispute and avoid costly, lengthy and emotionally taxing litigation and Court proceedings.
Family Dispute Resolution (or FDR) is defined in section 10F Family Law Act 1975 as:
“A process (other than a judicial process) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process”
A Family Dispute Resolution Practitioner (FDRP) is a mediator, accredited with the Attorney General Department after undergoing additional and specific training.
People looking at their options for mediation have lots of questions about what a mediator does and how the FDRP process works. Some of these questions are listed below.
- Mediation vs divorce lawyer – What’s the difference?
Your lawyer is your advocate retained to represent your interests in a Family Law matter or Divorce proceeding. They work in your best interest to get you the best outcome possible. Your ex-partner’s Divorce lawyer will do the same for them. Lawyers are required in litigation before the Court which can be a consuming process, both emotionally and financially.
Mediation empowers separated couples to find an outcome themselves, with or without lawyers being involved. Discussions in mediation are ‘without prejudice’ and cannot be used as evidence in Court if an agreement isn’t reached.
Mediators provide a structure/process for discussions to occur. They address:
- power imbalances between the opposing sides through interventions
- assist the parties to better understand the interests and concerns of the other party
- facilitate negotiation
Most importantly, the mediator is impartial while a Divorce Lawyer represents only one side in the dispute.
- Are the mediation sessions confidential?
Divorce litigation, where the matter goes to court, are confidential and protected by confidentiality provisions in the Family Law Act 1975.
Mediation and FDR is also confidential, and the discussions are “without prejudice” which means the proceedings can’t be used in evidence. There are exceptions to confidentiality though, such as:
- if a party makes threats to commit a criminal offense
- information regarding commission of a crime comes to light
- there’s information regarding risk to a child
The mediator or FDRP is required by the Regulations to report in the above circumstances.
- I don’t feel safe, what should I do?
Mediation or FDR may not be appropriate if there’s family violence or other power imbalances that affect a party’s ability to participate effectively in the process.
Prior to mediation your mediator or FDRP will usually contact you with a series of questions as part of a screening process. The screening process will allow the mediator or FDRP to decide whether the mediation should proceed.
If there’s family violence but the mediator thinks mediation can proceed, the process can be conducted by way of ‘shuttle’ with the parties kept separately and the mediator acting as a go between.
- What happens if we can’t agree?
Sometimes parties can’t resolve their differences with the assistance of mediation. Sometimes couples, despite their good intentions, just can’t agree. Hopefully some issues can be narrowed or better understood via the process and in parenting matters the Family Dispute Resolution Practitioner can issue a Section 60I Certificate allowing the parties to file in Court. The Certificate will indicate to the Court one of the following from the FDR:
- The parties attended and made a genuine effort to resolve the dispute;
- The parties attended but one or both did not make a genuine effort to resolve the dispute;
- Mediation didn’t proceed because one party didn’t attend after being invited by the FDRP;
- Mediation wasn’t appropriate.
- But what happens when we do agree?
Depending on the dispute there are different potential outcomes if the parties agree.
For property settlement disputes, heads of agreement can be reached and signed which set out the basis for a Consent Order, or Binding Financial Agreement, to be produced.
In parenting disputes, a Parenting Plan will record the agreement which may or may not be made into a Consent Order at a later date. Whether there is a Consent Order, or the agreement remains as a Parenting Plan is a matter for the parties.
- What will mediation do for me?
Mediation empowers the parties to make their own decisions. This tends to create a greater likelihood for satisfaction with respect to outcomes (particularly as an alternative to having a Judge impose an Order).
Experienced Family Lawyers will understand that very often neither party walks away satisfied from “having their day in Court”. Mediation can significantly reduce costs of litigation, the delays often experienced with the process and the animosity created by the opposing side.
Particularly in parenting matters where child focus is important, mediation can assist the parties to move away from entrenched positions. FDR allows them to closely explore each other’s interests and the best interests of the children in the dispute.
I once heard a Judge tell a mother and father, “I don’t know your children, or love your children – why do you want me to make these important decisions for them”.
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