If you are recently separated or have been separated for some time, and have matters to discuss with your former spouse, Family Dispute Resolution and Mediation are two forums which provide parties with the opportunity to have open discussions and work towards resolving your matter. So what is the difference between Family Dispute Resolution and Mediation and what are the processes which both forums offer.
Family Dispute Resolution
Family Dispute Resolution (FDR) is a formal process which facilitates a discussion between parties who have separated to work towards resolving their parenting or property dispute. The FDR process is a service provided by organisations such as the Family Relationship Centres, Relationships Australia, Legal Aid (in each State) along with other community organisations. FDR can also be facilitated by lawyers, social workers, psychologists and other practitioners who specialise in mediation.
It is important to note, particularly for parenting matters that only certain facilitators can issue a certificate which indicates you have made a genuine attempt to resolve you matter (as required by the Family Law Act, if you need to commence proceedings for your parenting matter). Those facilitators must be registered Family Dispute Resolution Practitioners.
The Family Law Act makes Family Dispute Resolution compulsory in parenting matters, if your matter will ultimately end up before the Court. That is, you must make a genuine attempt to resolve your parenting matter before filing an application seeking parenting orders. There are exemptions to this requirement where – you have reached agreement and are filing consent orders, there are allegations of child abuse, neglect or family violence or other form or urgency. You should consult a family lawyer if you think that these exemptions might apply to you.
What is the process for FDR?
Each service will have a different process depending on whether you are using a government, community or private FDR process. Generally a government funded or community service will provide an intake service, followed by a group or information session followed by the FDR session. The process is usually between the parties to the dispute and the facilitator. On some occasions you can include a support person but all parties including the other party and facilitator must agree to this process. Lawyers are usually not involved if the process is facilitated1` through a government or community service.
During the FDR session the FDR Practitioner must let you know about certain aspects of the session. The process is confidential and discussions are had on a without prejudice basis. This means that what is said, admitted or conceded during the session is confidential and can’t be used later against the person making the concession (for example if your matter ended up in Court). Confidentiality is only waived if threats are made against a person or property, if the practitioner considers that a child is at risk or a crime has been or will be committed.
The FDR Practitioner will also give you information about the service provided, their qualifications, how to provide feedback or complaints about the service and ways that you can resolve your matter through parenting plans.
It is important to note that the FDR Practitioner is impartial and independent. They are not there to take sides. They are not there to provide you with legal advice about your rights or the process generally. Their role is to assist you to objectively explore options to resolve your matter.
If you reach agreement then any document that you and your partner sign as a result of the FDR session will be known as a parenting plan. A parenting plan is not a binding document and, depending on your circumstances, you should seek advice from a lawyer about converting your parenting plan into a legally binding consent order.
If you were unable to resolve your matter, the FDR Practitioner will issue a certificate which will indicate that you attended an FDR session and made a genuine attempt to resolve your matter. You can then seek further advice from a lawyer about whether court proceedings are necessary to assist you further.
Family Relationship Centres provide a free FDR process to those clients who earn less than $50,000 or are in receipt of Commonwealth health and social security benefits.
Mediation is similar to the FDR process and can also be used to resolve a matter. Most mediations are facilitated by private practitioners such as lawyers, social workers, barristers and other trained and accredited mediators. Some mediators are not Family Dispute Resolution Practitioners. This is important to note in parenting disputes only – if you are a party to a parenting dispute, only an FDR Practitioner can issue the required family law certificate which indicates you made a genuine attempt to resolve your matter. If you think your matter is one that might end up before the court, do your research and make sure that your mediator is also a registered FDR Practitioner.
What is the process for Mediation?
Most private mediations run are run in a similar way to FDR. The mediator will usually arrange for an intake session where they speak with you about the issues you are concerned about. Following the intake session, sometimes on the same day, sometimes on different days, the mediation will commence. The mediator will let you know those same things that are relevant to the FDR process – that is, that the mediation is a confidential and without prejudice process and that confidentiality is only waived if threats are made against a person or property, if the practitioner considers that a child is at risk or a crime has been or will be committed.
The same rules about support persons apply however in private mediation you can have a lawyer present.
There are some advantages to having a lawyer present during these discussions and for that reason some will prefer the mediation process to the FDR process. A lawyer will be able to advise you about your rights and provide other options to resolve your matter – remember that a mediator and FDR Practitioner is impartial and can’t provide you with advice about your rights. A lawyer might also bring with them documents which can more readily be made into a binding agreement.
A mediation will generally commence with an information session about how the mediation works and what happens if you can’t resolve your matter. There may then be a session which just involves the lawyers to iron out any details like the property pool or any contentious issues which the mediator feels may impede the negotiations. Most mediations then proceed on a shuttle basis – that is, with the meditator moving between the rooms to see if an agreement can be reached.
Resolving your matter
If you have a matter to discuss with your former spouse and are looking for a forum to provide for open and confidential discussions, a lawyer can assist. A lawyer can point you in the right direction as to the best options tailored for your matter and assist you to find the best FDR Practitioner or Mediator for you. If you think that this applies to you, contact us at Carroll Fairon Solicitor.