Mediation

What is mediation?

Mediation is usually a voluntary process that can be used in many situations where people are unable to resolve a dispute. A neutral third party, known as the mediator, facilitates mediation.

Mediators help people in conflict discuss the issues, understand each other’s point of view and explore possible options for resolving the problem. When an agreement is possible, the mediator will write up the points of agreement so each person has a copy of what they and the other people involved have agreed to commit to.

Our family law mediator is a Nationally Accredited Mediator and Family Dispute Resolution Practitioners registered with the Australian Government Attorney-General’s Department. Our mediator mediates both parenting and financial matters, both if parties are represented or not.

What is the best thing about our family mediation service?

Our experienced in-house mediator specialises in family law mediation and family conflict. She conducts mediations for a range of family conflicts including parenting and property disputes. Further, she is also a family lawyer – which means she has an understanding of the stress, cost and time it takes to try and resolve matters in the Family Court.

Do you know that not all mediators will conduct mediations where one person has a lawyer, and the other one doesn’t? That’s where we are different – we don’t think it’s fair that parties should be prevented from family mediation, just because they can’t agree whether they should both have a lawyer (or where one person can’t afford a lawyer!)

We will conduct family law mediations where:

  • both parties have lawyers;
  • neither party has a lawyer; or
  • one party has a lawyer.

This gives you the freedom to attend mediation on your own terms.

We also have extremely affordable rates for our family conflict services, and will cater to your needs by offering either a half day mediation, or a full day mediation for things that might take a bit longer.

Our family law mediator is flexible in terms of intake appointments, and can conduct them over the phone, via video, and even after hours where necessary. We also have the luxury of having our own mediation rooms at our office, which reduces your costs by not having to provide or hire a space for your family mediation.

What does a mediator do?

The mediator’s role is to help you to talk to the other party about issues that are causing problems for you. They make sure that it is safe for you to meet and keep the conversation respectful.
The mediator will help you to:
  • have a chance to be heard equally and fairly
  • work out what issues are important to each of you and why
  • find areas of agreement and common ground
  • work together to help find solutions for the identified issues
The mediator will not:
  • give advice – legal, counselling, financial, or any other advice
  • judge you or decide who is right or wrong
  • take sides or make decisions for you
  • tell you what agreement you should make
During mediation, you are responsible for finding workable solutions to your issues. These solutions may not be perfect, but are solutions that you can live with, and move forward with your life.

Why mediate?

Trying to sort out problems in mediation is usually more effective than going to Court for many reasons, including:

  • Commitment – As mediation is usually voluntary, it can mean that if you each agree to mediation, you want to resolve the issues between you.
  • Confidentiality – Mediation is private and confidential. Going to Court is not. Even if you are not able to reach agreement in mediation, anything you say during mediation or any options considered during mediation cannot be used as evidence in Court. The mediator is also bound by strict confidentiality rules and cannot disclose anything discussed in mediation with others without your permission, except where there is a need to protect persons or property from harm.
  • Cost – Mediation costs are a tiny fraction of the cost of going to Court.
  • Time – Mediation can be arranged at short notice – usually within a week or two so that you are not forced to live in a conflict situation for a long time.
  • Flexibility – Mediation is a flexible, informal process. You decide what you will discuss and can take a break when you need to. Unlike Court processes which are formal and controlled by a Magistrate or Judge.
  • Honesty – Mediators are skilled in creating a safe environment where you can speak openly and honestly about the impact the conflict has had on you and what you need for it to be resolved. This allows you to discuss issues, explore options and reach agreements that meet your needs and interests.
  • Support – Non-participating support persons are welcome to attend the mediation, subject to the agreement of all parties.
  • Agreement – Depending on the issues between you, your agreement may be a simple handshake agreement, a written reminder, a signed agreement, which has some legal effect, or you can take further steps to turn your agreement into a contract or register it with the Court so it becomes Court Orders.
  • Finality – Agreements reached in mediation are your decisions about what will work for each of you. Therefore, you are likely to be more successful in the long run.

To get clued up on all things mediation, call us today to speak with our family law mediator free of charge

What is Family Dispute Resolution (“FDR”)?

FDR is a dispute resolution process where Family Dispute Resolution Practitioners (“FDRP’s”) assist people who are ending their relationships to resolve issues related to the ongoing care of their children and/or financial matters.

FDRP’s are mediators who have post graduate studies at the Graduate Diploma of Family Dispute Resolution level or above and have been approved by the Attorney-General’s Department to mediate these matters. FDRP’s are bound by rules of conduct and a code of ethics as outlined by:

  • The Family Law Act 19751
  • Family Law (Family Dispute Resolution Practitioners) Regulations 2008
  • Relevant State and Territory laws
  • The Attorney-General’s Department

When is FDR mandatory?

FDR must be attended before applying for a Court Order in relation to a child, unless an exemption applies. If you want to apply to the Court for an order in relation to a child you will need to obtain a Section 60i Certificate (S60i Certificate) from an FDRP before applying, unless an exemption applies. You will need to speak to a lawyer to about whether an exemption applies to you.

A Court may consider the type of S60i Certificate you are issued when deciding whether to make an order referring you back to FDR or to award costs against a party.

What happens in the pre-mediation session?

In the private pre-mediation session, the mediator will meet with you to explain the mediation process, find out if your dispute is suitable for mediation and make sure you are prepared and ready to participate. During the pre-mediation session, you and the mediator will:

  • Discuss your situation and what you would like to achieve in mediation.
  • Talk about the mediation process so that you can make an informed decision to participate or not.
  • Talk about the history of your dispute and identify any risks associated with meeting with the other person.
  • Find out if there are any Court Orders or other legal proceedings in place that are relevant to the mediation.
  • Ensure that all parties can make decisions freely and willing to participate in the mediation process voluntarily.
  • Discuss any additional information or advice that may be beneficial to acquire before the mediation e.g. legal, financial, notes or documents.
  • Make sure that you are prepared and ready to participate in mediation.

Pre-Mediation sessions typically last around an hour and are private and confidential.

What happens in the safety screening session?

Safety screening sessions are required for all FDR mediations, including FDR Parenting and FDR Property and form part of your pre-mediation session.

In the private safety screening session, the mediator will meet with you and together work through a safety screening procedure / questionnaire. During the safety screening session, you and the mediator will work through the questionnaire discussing your situation to ascertain:

  • Your safety
  • The safety of the other party
  • The safety of others involved including any children

Safety screening sessions typically last around an hour and are private and confidential.

What else do I need to know about mediation?

The key things that make mediation unique and powerful are:

  • Confidentiality: Mediation is a confidential process. That means that the mediator can only speak about your mediation to other people with your permission. It also means that the mediation parties can only talk about what they learn in mediation with their advisors or close support people. However, as previously mentioned, there are some exceptions to confidentiality.
  • Ground rules: The discussion in mediation is to be respectful and without threats or abuse. This is facilitated by all parties agreeing to a set of ground rules about how you will treat each other in mediation. These ground rules will be maintained by the mediator.
  • Neutrality of Mediators: The mediator is a neutral and impartial third party. This means that they do not get a benefit from a specific outcome of the dispute or have/show a preference or bias towards any party to the mediation. The mediator must disclose and discuss with you any real or potential conflict of interests that they become aware of and you should immediately raise any concerns you have if you become aware of any.
  • Mediators do not provide legal and other advice: The mediator’s role is to assist you to reach an informed and voluntary agreement. The mediator will not provide legal, other advice or judgement. The mediator may assist, in a non-advisory manner, with making an informed decision or may suggest/refer you to independent advice or counsel.
  • Inadmissibility: Information shared and the things discussed and considered in mediation are not admissible as evidence in Court. That means you can consider your options without fear that you are going to be forced to do something you haven’t fully agreed to.
  • Agreements: Agreements reached in mediation are done so freely. If this is not the case, then ask to speak privately with the mediator and share your concerns with them. If the agreement is written, signed and dated it will have some legal weight and be able to be admitted as evidence in Court. It will be up to the Magistrate or Judge to decide if they will order that you follow the agreement reached.
  • Parenting Plans: Agreements about any aspect of the care, welfare or development of a child or any other aspect of parental responsibility for a child that are signed and dated by the parents or carers are called Parenting Plans. Unless a Court Order says that it can only be replaced by another Court Order then a Parenting Plan can replace a Court Order allowing you to reach an agreement to replace the terms of a Court Order that no longer work for your family. A Parenting Plan is not legally enforceable but the Court must consider it if you do apply to the Court for new orders.

How do I proceed from here?

You can book in for your pre-mediation intake session by contacting us on (08) 6381 9444 or by emailing legal@hickmanfamilylawyers.com.au. Please be aware, that if you engage us to provide family mediation or family conflict services, we are conflicted out of representing you client for the purpose of giving you legal advice.

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