Family Dispute Resolution (Mediation)

Many people feel helpless and alone when they negotiate with a spouse who might be bitter or angry. Attempts to reach an agreement with a spouse who seems unreasonable or overbearing can be stressful. In many cases, it makes sense to turn to the mediation services for assistance in resolving difficult or sensitive issues concerning your children or finances.

In this eBook, we will discuss the benefits of mediation, describe the mediation process, and explain when mediation is required. This eBook is intended as an educational tool. It is not contain legal advice and it is not a substitute for consulting with a lawyer. Every person and every situation is different. To obtain information and advice about mediation that is specifically tailored to your needs, you should seek the assistance of a family law attorney.

What is mediation?

Mediation is a process of working through your dispute with your spouse with the assistance of a neutral professional who is trained to help spouses set aside their differences and reach agreements. Mediation can be used if your dispute is over financial issues (such as the inability to agree on a property settlement) or parenting issues (such as a disagreement about where your children should live). In Family Law Court, mediation is more formally known as family dispute resolution, particularly when it involves children.

More than 90 percent of divorcing couples reach an agreement about financial and parenting issues. Often they do so by talking to each other. Other times, particularly when children are involved or financial issues are complicated, they talk to each other with the assistance of their lawyers. When differences seem irreconcilable or it is simply too stressful to negotiate with your spouse, however, mediation can be a useful resource to help you and your spouse work through issues to reach an agreement that benefits you both.

Why should you use mediation?

Asking a judge to resolve your dispute rather than reaching a settlement out of court has a number of disadvantages. There are emotional and financial costs involved in court proceedings. You are also leaving your fate in the hands of a person who does not know you. If you can come to an agreement you can live with, you may be happier with decisions you made yourself than you would be with decisions imposed upon you by a judge who can never understand your situation better than you understand it yourself.

Benefits of mediation include:

• Reducing anger and conflict by meeting on neutral ground with the assistance of a professional who will not allow uncontrolled anger to interfere with a calm and rational discussion of the issues;
• Reducing the financial burden you will bear if you must present your case in court;
• Reducing the emotional stress of negotiating without the help of a professional who can help you get beyond the painful issues surrounding a breakup and focus on the financial and parenting issues that need to be addressed;
• Helping you and your spouse communicate effectively;
• Helping you and your spouse learn how to put the needs of your children first;
• Helping you and your spouse separate important legal issues from emotional baggage.

If you and your spouse cannot agree about parenting issues, mediation can help you make important decisions while keeping the best interests of your children in mind. Those decisions might include:

• Whether you and your spouse can share responsibility for making decisions about your children’s future (including the schools they will attend, their after-school activities, the health care they will receive, and whether or not they will be raised in a particular religion) and, if not, which parent will assume that responsibility;
• Where the children will live;
• When the children will have contact with (or live with) the other spouse;
• How payment for the support of the children will be shared.

When is mediation required?

The Family Law Courts expect you to make a serious effort to resolve your differences before you file an application with the court for a parenting or financial order (other than a consent order). If your dispute involves a property settlement or payment of maintenance, the Family Court of Australia’s pre-action procedures require you to participate in a process of dispute resolution, such as negotiation, conciliation, arbitration, or counseling, before you apply for a financial order. You might also be expected to participate in a conciliation conference after you apply for a financial order. Financial issues and conciliation conferences are addressed in more detail in another eBook in this series.

If your dispute involves your children, the Family Law Act requires you to participate in family dispute resolution before you apply to the court for a parenting order. If you do not participate in family dispute resolution, you must have a good reason. When you file an application for a parenting order, you must also file a certificate from a family dispute resolution practitioner that states one of the following:

• You were unable to participate in family dispute resolution because your spouse refused to attend;
• You did not participate because the practitioner concluded that conducting family dispute resolution would not be appropriate given the circumstances of your case;
• You participated with your spouse and you both made a genuine but unsuccessful effort to resolve your dispute;
• You participated with your spouse but one of you did not make a genuine effort to resolve your dispute;
• You participated with your spouse but the practitioner decided that it would not be appropriate to continue the dispute resolution process.

The court can excuse your participation in dispute resolution if it is satisfied that:

• You or your spouse have abused one or more of your children;
• Delaying a parenting order would create a risk that one or more of your children will be abused;
• There has been, or there is a risk of, family violence directed against you;
• You applied for an order within the last 12 months, your spouse violated or disregarded that order, and you are seeking a new order that relates to the same issue;
• The need for an order is urgent; or
• You or your spouse are unable to participate in dispute resolution (usually due to incapacity or distant residence from a dispute resolution center).

If you apply for a parenting order and the court determines that none of the exceptions apply, the court will refer you to family dispute resolution without taking further action on your application. The court might also impose a financial sanction.

What happens during mediation?

When you make an appointment with a family dispute resolution practitioner, you will be given more information about that practitioner’s expectations and requirements. You will probably be asked to participate in an assessment before mediation begins to determine what issues need to be resolved and whether mediation can lead to a resolution. Mediation is generally available for a reasonable fee and payment plans, discounts, or free services are often available for low income individuals.

Your children are not expected to participate in mediation but the practitioner might want to meet your children at some point in order to ask them about their preferences. Practitioners are more likely to interview older children. You may or may not be allowed to take a support person with you. Your lawyer may or may not be allowed to participate in mediation sessions. Many practitioners view mediation as just for the parties, not for their lawyers.

The practitioner’s role is to remain neutral and professional. The practitioner does not take sides in a dispute. His or her role is to facilitate agreement between the parties, not to help you cope with emotional issues. Mediation is not the same as, or a substitute for, counselling or therapy. The practitioner tries to help the parties understand their goals and the options that are available to achieve those goals. The practitioner will help you remain focused on the important issues, usually by addressing those issues one at a time. When necessary, the practitioner will remind spouses that feelings of anger and resentment are a barrier to solving problems. The mediator will try to make sure that neither spouse dominates the discussion or intimidates the other.

The practitioner will encourage you to think about the best interests of your children and to place their interests ahead of your own. The principles that guide Family Court decisions about children should be kept in mind during mediation:

• It is usually in a child’s best interests to maintain a meaningful relationship with both parents;
• Children should be protected from physical or emotional harm or abuse;
• Children require good parenting to achieve their full potential; and
• It is the obligation of both parents to provide for the care, welfare, and development of their children.

When it is possible to reach an agreement, the practitioner will help you prepare a parenting plan. The practitioner will also make sure that both parents understand the plan and agree to abide by it.

Is mediation confidential?

As a general rule, a family dispute resolution practitioner cannot disclose anything you say during mediation without your consent. That means that things you say during mediation usually cannot be used as evidence in court. Exceptions to the general rule exist if disclosure of information is necessary to protect a child from physical or psychological harm or to protect an adult from a serious and imminent threat to that person’s life, physical safety, or property.

Where can I find mediation services?

Family dispute resolution services are available from a variety of different providers, including Family Relationship Centers, family counsellors, psychologists, social workers, and community organizations. Only an accredited family dispute resolution practitioner can issue the certificate you will need to file with your application for a parenting order. Contact details for accredited family dispute resolution practitioners can be found in the Family Dispute Resolution Register. You can search by postcode, town, or state to find accredited practitioners in your area.

Warning and Disclaimer
Family Dispute Resolution (Mediation) by Alan Weiss is a self-help eBook written from the perspective of the author.

The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.