Mediation in Family Law usually refers to Family Dispute Resolution Practice or FDRP.
Family mediation is conducted by a Family Dispute Resolution Practitioner, a Mediator who is registered and approved by the Attorney General to conduct a mediation in relation to parenting matters, (family) property matters, or both.
Everything that is said during mediation is confidential with some exceptions. The Mediator will always explain these exceptions at the commencement of mediation.
What is the role of a Mediator during Separation or Divorce?
The role of an FDRP Mediator post-separation is to help the parties to decide how to divide their assets or how to make parenting arrangements for both parents to spend time with the children following separation.
This reduces the stress and costs that could otherwise affect the parties following separation.
How do I start Family Mediation?
Once the final decision has been made for a couple to separate on a final basis, it is then necessary for the parties to work out how to divide assets and to organise parenting arrangements if the children are living at a different address.
To start divorce mediation, one of the former partners will contact an FDRP practitioner initially. The practitioner will then arrange an intake assessment with each former partner. A date can then be arranged for the mediation or the Family Dispute Resolution Conference.
What do I ask for during Family Mediation?
For all matters, you will usually be provided with information at the intake stage about the process. This can include what to expect, the mediation process, information about confidentiality and your privacy, and just in case, where to make a complaint.
For parenting matters, you will be provided with information about the best interests of children and possibly information about children’s developmental and social needs.
For property matters, you will be asked to provide materials about the ‘property pool’, e.g. the assets and liabilities of the former relationship or marriage. You will be asked to provide information about each former partner’s financial contributions or financial position at the commencement of the relationship, during the relationship, and present position. You will also need to provide non-financial contributions made during the relationship and the needs of each of the former partners moving forward.
The Mediator will ask you to bring any former agreements including parenting plans or court orders.
There may be other materials that you may be asked to bring but you will be informed of this by the Mediator.
If you are to attend a mediation to make decisions on a final basis, it is best to seek legal advice prior to your attendance so that you can have questions in relation to what may be a fair and appropriate outcome from mediation explained to you.
You can explain to the Mediator what information you do and don’t want to be told to your former partner during the mediation and you can call for a break anytime. You can also speak privately to the Mediator at any time, ask for clarification or ask any relevant question during the process.
For solicitor-assisted mediation or Family Dispute Resolution, you will bring your lawyers who will advocate on your behalf to ensure that you are able to negotiate an agreement that is in your and your children’s best interests under each set of individual circumstances.
How does the Family Mediation session happen?
In Family Mediation, you and your ex-partner will generally be present during the Mediation session. However, you will not be forced to face your ex-partner if you do not feel comfortable doing so.
Mediators are trained to create a safe and neutral environment where both parties can express their views and concerns without fear of judgment or retaliation.
They can facilitate the mediation process in a way that ensures each party has the opportunity to speak and be heard.
In-person
FDRP (Family Mediation) can be in-person in the same meeting room. Or it can be by shuttle, which is where parties are in separate rooms.
Phone
Mediations can also be conducted by telephone, either with one party in person, and one by telephone-shuttle, or with both parties by telephone.
In the same-line telephone mediation, all parties and the Mediator are on the same phone call and can hear each other.
In telephone-shuttle mediation, the Mediator communicates separately with each party by phone and acts as a go-between to facilitate communication and negotiation.
Electronic (Online)
FDRP (Family Mediation) can also be conducted electronically using audio-visual methods like Microsoft Teams or Zoom. This approach is known as online mediation or virtual mediation.
In same-electronic room mediations, all parties and the Mediator are in the same virtual ‘room’ or video conference call.
In shuttle-electronic mediations, the Mediator moves between separate virtual ‘rooms’ or calls with each party to facilitate communication and negotiation.
Telephone and electronic mediation can offer several benefits, such as increased convenience and reduced costs compared to in-person mediation.
It can also be useful in situations where parties are in different geographical areas, where there are time constraints that make it difficult to schedule in-person meetings, or where there are concerns about safety or privacy.
What can I expect during Family Mediation?
You can expect to be treated respectfully and to have your discussions treated confidentially. There are exceptions to confidentiality, but these exceptions only apply when there is an imminent threat to the safety of people or property.
You can expect a parenting-only or property-only mediation to take on average around four hours.
For parenting and property matters, (where both issues are being decided together) the mediation can take up to eight hours.
You can expect to be in an environment where you do not feel overpowered or disadvantaged and where negotiations between you and your former partner are facilitated by the mediator.
You can expect to feel safe, and you are able to leave at any time, although it is generally a worthwhile process to see through until the end.
What if Family Mediation fails?
Before a Parenting matter can be taken to court, the parties must try mediation first. There are, however, some urgent exceptions to this which will be explained by the mediator. So, even when a complete agreement cannot be made, the parties always benefit from their attendance at mediation as mediation will assist the parties to identify and narrow down the issues in dispute.
Often the parties can continue to negotiate following the mediation in order to reach a final or interim agreement.
What happens in Family Mediation for custody of children?
For Family Mediation relating to children’s matters, the Mediator will in all circumstances be encouraging the parents to consider what is in the best interests of the children. In most cases, children benefit from a significant and substantial relationship with each parent. Although, there are some individual exceptions to this.
The Mediator will encourage the parties to reach an agreement and sometimes to be willing to compromise. This is so that suitable and age-appropriate arrangements can be made for each of the children to spend time with the parents, so long as the arrangements are in the best interests of the children.
What happens after Family Mediation?
Once an agreement is reached, this agreement can be drafted into Orders by Consent if a solicitor assisted, or the Heads of Agreement can be taken to a lawyer to be drafted into Orders by Consent after an agreement is reached.
A parenting plan or agreement can be drafted and signed before the parties leave the mediation.
Should the parties ever need to proceed to court, the parenting plan will be very seriously considered by the Judge appointed to hear the matter.
How much does Family Mediation cost?
There are some organisations such as Anglicare, Uniting Care, and Relationships Australia that offer subsidised mediation services. These organisations often have a waiting list, so if you intend to use these services it is important to register your interest early.
There are experienced family lawyers and barristers who also practice as Family Dispute Resolution Practitioners. They usually advertise their fees transparently on their web pages.
McCarthy Mediation’s fees can be found here.
If you are able to resolve your dispute using Family Mediation, the investment is well worth the nominal expense incurred. Most parenting and/or property matters which proceed to court can incur considerable fees and extensive timeframes before reaching a resolution.
Next Steps
McCarthy Mediation offers its services Nationwide. We have many clients, just like you, who may be looking for a cost-effective and time-efficient way to amicably reach an agreement on property and/or parenting matters with their ex-partner.
In most cases, our senior team of FDR Practitioners can offer a 7-14 day turnaround time from Initial Phone enquiry to Intake appointment and then Mediation.
If you would like help to get a clearer picture of what Family mediation looks like for you and your family law matter, you can book a FREE 15-minute Initial phone call with one of our team by either calling our office or by booking an appointment online.