Family Dispute Resolution (FDR), along with being a compulsory requirement before commencing any court proceedings, represents a real opportunity for parents to focus on their children’s needs in the context of parental separation.
There are exemptions from FDR, including circumstances of urgency. FDR, like most things, requires preparation to get the most from it.
At Louise Coady Family Lawyers we have access to qualified FDR practitioners to facilitate the resolution process through mediation.
Mediation is a form of negotiation. Mediation has many definitions but all have, as a common element, a focus on being a process in which a neutral third party (the mediator) assists people in dispute reach a voluntary settlement of their differences.
Mediation is about parties reaching a private agreement without the need for another person (such as a Court) telling them what to do. It is about people working together to reach a compromise they can live with and which, ideally, meets the needs of all parties involved or affected by the dispute (especially children).
The role of the mediator is not to tell parties what to do or impose a solution upon them (as a Court would). The mediator’s role is, instead, to help parties negotiate with each other to find a mutually acceptable and common solution to their dispute. The mediator does not control or own the solution of the dispute – the parties do. The mediator controls the process and guides the parties’ negotiations with each other to ensure that all are comfortable, able to negotiate freely and openly and to have their views heard and their needs considered.
In mediations involving parenting disputes (usually called Family Dispute Resolution Conferences) the mediator also works to keep parties focused on the needs of children.
Mediation is not a new concept. The modern move towards mediation rather than litigation allows parties to resolve their dispute as they wish. Mediated resolutions have a number of distinct advantages over litigation and Court imposed solutions including:
- The outcome is usually far quicker;
- Mediated settlements are much cheaper;
- The outcome is more certain. Court hearings have a real element of uncertainty because the answer is left to someone else;
- The outcome is far more flexible and can take account of the individual needs and desires of the parties and their children;
- The outcome is determined and owned by the parties who will be affected by the outcome and who have to live with the decision;
- Mediation can focus on whatever issues you think are important to discuss and resolve and can be discussed and resolved without having to fit a legal framework.
How is Mediation Arranged?
Court proceedings cannot be commenced without parties having attended or at least having attempted or been assessed for suitability of mediation. It is still open to a party to refuse to participate or for mediation to be assessed as inappropriate. Mediation requires an equality of bargaining power and both parties to be safe. It is not always appropriate to mediate and specific exemptions apply under the Family Law Act relating to violence, abuse and urgency. Part of the mediator’s role is to assess the suitability of a case for mediation.
If mediation appears suitable and proceeds then the structure of the mediation is flexible. Most commonly both parties will be in the same room with the mediator for most of the time. Mediation can also proceed as a “shuttle” where the parties are separate and the mediator moves between them. Telephone mediation can also be useful when parties live a significant distance apart or where they feel uncomfortable in the same room but wish to participate together. The most important aspects of any mediation are:
- Mediation is a genuine opportunity, independent of Courts, to resolve disputes in a way parties can live with rather than having an outcome imposed;
- Everything discussed at mediation is private and confidential;
- The process of mediation is intended to be respectful-of parties, their ongoing relationship with each other and their right to be involved in and control the making of decisions that affect them and their children;
- Mediation is focused on finding solutions for the future that will work and which meet the needs of all parties and, even more importantly, any children (who rely on their parents and carers to find suitable, stable arrangements for their care);
- Mediated agreements can deal with any aspect of parenting or financial issues that parties wish (whereas Court processes have jurisdictional limits that exclude some issues).
Please contact us to make an appointment to discuss how Louise Coady Family Lawyers can support you.