What is mediation?

Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute in a safe and respectful environment.

Mediation is an alternative to a Judge or Judicial Registrar imposing a decision on the parties.

Is a mediation agreement legally binding?

A parenting or property agreement/plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a court. However, there are steps that can be taken if the parties wish to have an agreement made into a Court Order.

What are the benefits of mediation?

The children are always the primary focus in a family dispute resolution mediation.

Mediation is less costly, less stressful and much quicker than going to court.

At mediation, you get a chance to discuss your point of view in a safe, neutral and confidential setting.

You have the control of the decisions that are affecting you and your children.

Parties get the opportunity to work together to better co-parent in the future.

What is a parenting agreement/plan?

A parenting plan is a written agreement that sets out parenting arrangements for children.

The plan is worked out and agreed jointly, you and your former partner do not need to go to court.

Unless a court orders otherwise, you and your former partner can agree to change a parenting order by entering into a parenting plan.

The Family Law Act sets out details about parenting plans in Sections 63C, 64D, 65DA and 70NBB.

Can I leave the session at any time?

Mediation is a voluntary process. If a party to mediation feels upset, confused or needs further advice, that party can end the session.

A party may also ask for a break for a private session with the mediator.

There are also times where the mediator may request a break or a private session.

Can I record the session?

The mediator will terminate the mediation if you are suspected of or insist on recording any part of the session.

You must agree that the process is confidential.

That means that what is said in the mediation session will not be reported to outside parties or non-parties to the matter.

Is mediation confidential?

Before mediation, the confidentiality is set out in a mediation agreement prepared by the mediator and signed by the parties to the mediation at, or prior to, the mediation.

If the matter is before the court, the Judge or Judicial Registrar is not informed of the contents of the mediation.

It is also usually unable to be used against a party if the case goes to trial.

Why don't i just go to a lawyer?

Once you engage a lawyer, that lawyer is there to give you independent legal advice, or to act on your behalf.

This role is different from that of a mediator.

Your lawyer is acting in the best interest of you and under your instruction.

The mediator in impartial and does not act for either party.

What if the other party wont come to mediation?

If the other party is not willing to come to mediation, you will be notified.

If the matter is in relation to parenting, the mediator will issue you a 60i Certificate.

The non attending party will not receive a 60i Certificate.

Please note: the 60i Certificate only applies to parenting matters.

Do i still need a lawyer if i use mediation?

You should seek legal advice before deciding what to do.

A lawyer can help you understand your legal rights and responsibilities and explain how the law applies to your case.

You may wish to seek legal advice from your lawyer following a mediation in relation to any agreement reached.

You can seek legal advice from a legal aid office, community legal centre or private law firm.

How do i prepare for mediation?

You can improve the quality of your mediation by considering:

  • What issues are in dispute, including the facts and sources of conflict.
  • What is important to you in any resolution of your dispute – remember the interests that you wish to preserve or pursue may be different to an outcome sought through a trial, whereas it may be the Judge or Judicial Registrar who decides.
  • How best to communicate this information, both to the mediator and the other party.
  • What you would say at the start of the mediation, to assist in resolving the dispute.
  • What the other party’s aspirations might be and how these might be accommodated in any offer of settlement.
  • Possible contents of an offer and methods of communication.
  • What costs have already been incurred or are likely to be incurred if the matter proceeds to court.
  • The possible outcomes if the matter were to proceed to a trial, including the dollar value of any damages claimed and any limits on the Court to award these
What if i have a protection order in place due to domestic violence?

Mediation can still proceed when there is a Protection Order (FVRO, VRO, MRO) in place, providing there is a “Save and Except” clause on the order that allows mediation.

If there is a Protection Order in place, the mediator will need to see the order before the matter can proceed to mediation.

What is a 60i certificate?

A certificate issued pursuant to section 60i of the Family Law Act allows a party to commence proceedings in a Family Court seeking orders in relation to children’s matters.

There are limited grounds upon which a 60i certificate can be issued.

The five types of section 60I certificates the mediator (practitioner) can issue are:

  • The person did not attend mediation (FDR) due to the refusal or failure of the other person or people to attend; or
  • The person did not attend FDR because the practitioner did not consider it would be appropriate to conduct FDR; or
  • The people attended FDR, conducted by the practitioner, and all people made a genuine effort to resolve the issue or issues in dispute but were unable; or
  • The people attended FDR, conducted by the practitioner, but one or more of them did not make a genuine effort to resolve the issue or issues in dispute; or
  • The people began FDR, but part way through the practitioner decided it was not appropriate to continue.

Only FDR practitioners accredited by the Attorney General’s Department can issue section 60I certificates.

What happens if we reach an agreement?

All agreements must be made by mutual consent.

Upon an agreement being reached, the mediator will write up the agreed terms and send the agreement to each party within 3 business days.

Any changes to the agreement would need to be done by mutual consent.

What can i expect in my private appointment?

This appointment is confidential.

None of the answers can be shared with the other party.

During this appointment, the mediator will ask questions about the family formation, how it was, how it is currently and what your expectations are for the future.

This appointment is to assist the mediator to ascertain if mediation is appropriate, as well as how the mediation should be conducted.

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