Family Law Mediation & Dispute Resolution (FDR) Melbourne

What is Mediation / Family Dispute Resolution (FDR)?

Mediation is a structured negotiation process where an impartial and accredited mediator helps separating couples discuss their issues, explore options, and work towards an agreement. The mediator doesn’t make decisions for you or provide legal advice; instead, they facilitate communication, manage conflict, and guide you towards your own resolutions.

Why Choose Mediation?

Mediation offers numerous advantages over traditional court litigation:

• Cost-Effective: Mediation is generally significantly less expensive than going through a lengthy court battle.
• Timely Resolutions: It’s often a much quicker way to finalise matters.
• Child-Focused (for parenting matters): Mediation encourages parents to focus on the best interests of their children and develop co-operative parenting strategies.
• Confidentiality: Discussions in mediation are confidential (with limited exceptions), allowing for open and honest communication without fear that what you say will be used against you in court.
• Preserving Relationships: A less adversarial process can help preserve a respectful ongoing relationship, which is particularly important when children are involved.
• Flexible & Creative Solutions: You can craft agreements tailored to your family’s unique circumstances, which may not be possible through a court order.

For disputes involving children, attending Family Dispute Resolution (FDR) is usually a compulsory step before you can initiate court proceedings for parenting orders.

1. The Section 60I Certificate:If you wish to apply to the Court for parenting orders, you will generally need to provide a certificate (known as a Section 60I Certificate) from an accredited FDR practitioner. This certificate will indicate:
• That you attempted FDR, and both parties made a genuine effort.
• That you attempted FDR, but one or both parties did not make a genuine effort.
• That one party refused or failed to attend.
• That the FDR practitioner deemed the matter unsuitable for mediation (e.g., due to safety concerns).
2. Exceptions to Requiring a Certificate: There are limited exceptions to this requirement, including:
• Cases involving urgency (e.g., child abduction or risk of harm).
• Situations where a party is unable to participate effectively (e.g., due to incapacity).
• If there are allegations of family violence or child abuse that make mediation inappropriate.
• If the application relates to an existing order made within the last 12 months that was breached.

Kelly & McHale Family Lawyers can assist you in finding an accredited FDR practitioner and guide you through the process.

Mediation for Property and Financial Matters

While not always compulsory in the same way as for parenting matters before filing, mediation is highly encouraged and often a very effective way to resolve property settlements and spousal maintenance disputes. Many financial matters are successfully settled through mediation, saving parties significant time, stress, and legal costs.

The Mediation Process: What to Expect

1. Intake: Both parties will usually have an individual intake session with the mediation service or private mediator. This is an opportunity to discuss your situation, the issues, and any concerns you might have (including safety).
2. The Mediation Session: Mediation can take various forms:
• Joint Sessions: You and your former partner sit in the same room with the mediator.
• Shuttle Mediation: You and your former partner are in separate rooms, and the mediator moves between you, conveying information and proposals. This is often used if there is high conflict or safety concerns.
3. Role of Lawyers: Some mediation models permit lawyers to be present, and some don’t. Having your lawyer present can be beneficial as they can provide you with legal advice on the spot, assist with negotiations, and help ensure any agreement reached is properly considered and documented. Even if lawyers don’t attend the session itself, it’s crucial to obtain legal advice before and after mediation.
4. Reaching an Agreement: If an agreement is reached, the mediator will usually help draft a summary of the terms. It is then often essential to have this agreement formalised legally by your lawyers to ensure it is binding.

Confidentiality in Mediation

Discussions during mediation are confidential and generally cannot be used as evidence in court. This is known as "without prejudice" communication and encourages open discussion. Exceptions to confidentiality apply in certain circumstances, such as if there is a disclosure indicating a risk of harm to a child or any person, or a threat to property.

Formalising Your Mediated Agreement

If you reach an agreement in mediation, it’s vital to have it formalised to make it legally binding and enforceable. This can be done through:

• Parenting Plans: For parenting matters (note: not legally enforceable like court orders but can be considered by a court).
• Consent Orders: For both parenting and financial matters, an application can be made to the Court to make your agreement into legally binding orders.
• Binding Financial Agreements: For financial matters.
• Binding Child Support Agreements: For child support matters.

How Kelly & McHale Family Lawyers Can Support You Through Mediation

Our experienced family lawyers are strong proponents of mediation and can assist you by:

• Advising you on whether mediation is appropriate for your situation.
• Helping you prepare thoroughly for your mediation session.
• Advising you on your rights, entitlements, and obligations.
• Attending mediation with you to provide support and legal advice during negotiations.
• Assisting in drafting clear and comprehensive terms of agreement.
• Formalising any agreement reached into legally binding documents (Consent Orders, Financial Agreements, etc.).
• Guiding you on the next steps if mediation is unsuccessful.

We aim to empower you to achieve the best possible outcome through mediation, minimising conflict and cost.