Preparing for Mediation

Separating couples must attempt mediation before taking their family matter to Court. The TGB Family Law team outline the Family Dispute Resolution process.

Before commencing proceedings in the Family Court of Australia or the Federal Circuit Court of Australia in relation to parenting disputes, the law requires parties to produce a certificate to confirm that you have attempted family dispute resolution (FDR).

Such a certificate, issued pursuant Section 60i of the Family Law Act, indicates that parties have consulted a FDR Practitioner, and made a genuine attempt to resolve their dispute. Attendance upon a FDR practitioner is compulsory prior to issuing proceedings in relation to parenting matters.

There are some exceptions to this general principle for example in matters involving:

1. Urgency

2. Allegations of child abuse and/or family violence.

FDR services are available at Family Dispute Resolution centres such as Relationships Australia and Centacare who can also assist in mediating property settlement matters. Separating couples often report lengthy waiting periods before a joint mediation session can take place.

FDR is also available through private family dispute resolution practitioners who can also issue section 60i certificates.

From a legal perspective it is crucial to make the most of this early opportunity to resolve your dispute.  FDR is the first opportunity to meaningfully negotiate your matter in a structured environment.

Successfully negotiating your matter at FDR or at the earliest opportunity will reduce the financial and emotional costs inherent in all litigation.

Whilst FDR is compulsory in relation to children’s issues in most matters, it is highly beneficial to parties who are engaged in property settlement disputes. Even in those instances where there is no final agreement, the parties often benefit whether that be by reaching interim arrangements in relation to children’s living arrangements or narrowing the issues in dispute.

To make the most of FDR, it is important to be advised of your rights and entitlements before you attend.  Having had legal advice (before mediation) about the prospects of your matter and how the Court would likely resolve your case is invaluable for parties making a genuine attempt to resolve their differences.

It would be unfortunate to decline a proposal that is in the range of what a court would likely order because you are unaware of your rights and entitlements.  It would be disadvantageous to agree to a settlement that is not fair and equitable.

When attending FDR it is certainly in your interests to negotiate from an educated, informed and considered perspective.

If agreement is reached at mediation it can be formalised and lodged with the Court. It is advisable that both parties obtain independent legal advice on the agreement reached. The settlement documents are best prepared by lawyers specialising in family law. Once the orders are made by the Court they are binding on the parties as if they were made by a Judge.

Naturally the immediate time following separation is a stressful and confusing time for anyone and obviously not an ideal time for making uninformed and emotional life changing decisions.

Seeking early advice prior to mediation or FDR from a lawyer specialising in Family law will certainly place you in the best possible position to participate in meaningful and fruitful negotiations which will hopefully lead to a speedy and sensible resolution to your matter.

There is no substitute for obtaining advice from a specialist family lawyer who can explain the consequences and likely outcomes for your specific circumstances.

For family law advice, call your nearest Tindall Gask Bentley office or register for an appointment at your local office online here.