Mediation in Family Law Disputes

When do I need to attend Mediation in a Family Law Dispute?

If you have separated from your partner and there are dependent children, you may not (except in limited circumstances) apply for a Parenting Order under the Family Law Act unless you have attended an Accredited Family Law Dispute Practitioner and obtained a Certificate issued by the FDRP in accordance with Section 60 I of that Act.

Even if you have no dependent children, you may find that a mediator can greatly assist you and your former partner to reach a workable arrangement in relation to the property interests from your relationship.

An FDRP is a mediator who has been Accredited by the Attorney General’s Department as having certain professional qualifications, current Working with Children and Police checks and complying with the requirements and obligations in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.

You can check the currency of Robert Rodgers’ accreditation by following this link:

https://www.fdrr.ag.gov.au/Search.aspx

Why Mediate?

Speedy

Mediation can be arranged quickly (within 1 or 2 weeks) which reduces the chances of the conflict escalating and causing more damage.
Confidential

Mediation is a confidential process. The only persons involved (or know) are those who need to be.
Mutual and Workable

When individuals do reach agreement, it is something which they (assisted by the mediator) each agree is workable and something which they can abide by.
Cost effective

Matters resolved by mediation at an early stage avoid the time and stress on an organisation and its staff preparing for Court cases, as well as tens or hundreds of hours of lawyers’ fees (not all of which can be recovered, even if you win).

Legal Requirements the Mediator has to Consider

As a Family Law Dispute Resolution Practitioner, before I may conduct a mediation, I am required to:

1) Assess you and your former partner,

a. obtain any history of family violence,

b. consider the safety of each of you;

c. consider the equality of bargaining power between you;

d. consider any risk that a child may suffer abuse;

e. Assess the emotional, psychological and physical health of you and your former partner; and

f. be satisfied that mediation is appropriate;

2) Provide you and your former partner with information:

a. That it is not my role to provide you with legal advice

b. About my obligations of confidentiality and disclosure under the Family Law Act;

c. Confirming that nothing said or admitted to during the mediation is, subject to the Family Law Act provisions, admissible in any Court;

d. About my qualifications;

e. About my fees (including my hourly rate);

f. That the mediation must be attended before a Parenting order under Part VII of the Family Law Act can be applied for; and

g. The types of Certificates I may provide for the purposes of the Court making an order under Part VII.

3) Ensure, as far as possible, that any records of the mediation are stored securely to prevent unauthorised access; and

a. the mediation process is suited to your needs;

b. the mediation is provided in accordance with the law;

c. that I terminate the mediation if requested to do by you or your former partner OR if I am no longer satisfied that it is appropriate;

d. must not provide any legal advice except about procedural matters; and

e. must not use any information obtained for personal gain or to the detriment of anyone.

4) Avoid conflicts of interest unless both parties agree to me continuing.

If you do not have dependent children (i.e. under the age of 18 years / still in education / under a disability) and your dispute relates only to the division of Property (house, shares, superannuation, interests in a business, furniture etc) you should consult a lawyer (and if advised, a financial planner) before I set a date for the mediation.

In a property mediation, the Court requires me to consider:

the assets and liabilities of you and your former partner, both individually and jointly, and what they are worth;
the direct financial contributions each of you made to the relationship including the property each of you had before the relationship commenced (home, car, furniture, investments) and your earnings when you were in the relationship;
any indirect financial contributions, such as gifts and inheritances;
non-financial contributions to property, such as renovations to a home, management of investments, or unpaid time working for a business;
contributions to the welfare of the family including caring for children, cooking and doing housework, and

importantly, each party’s future needs. This includes your age, health, financial resources, care of children and ability to earn.

Finally, before the Court will approve arrangements made in a mediation, it will consider whether those proposals are “just and equitable”.

Preparation for the Mediation Intake Session

Where you do have dependent children, there are many practical issues you should think about before you come to the mediation. In relation to the shared parenting responsibilities which each of you and your former partner have towards the children, you need to consider, including but not limited to:

· Living arrangements – where will the child/ren primarily reside?

· Schooling/ childcare/ before and after school care;

· Travel / collection arrangements;

· Communication entitlements for the child/ren with each of you;

· Entitlement for the child/ren to contact/visit grandparents or other close family members;

· Communication between each of you in relation to the needs of your child/ren and how you will agree on decisions involving such things as:

· Medical treatment/emergencies;

· Payment of schooling costs (uniforms, books, excursions, sports or music equipment etc);

· Changes required in travel/collection arrangements because of sickness etc;

· Out of school activities (who pays, who conveys, how it may impact on access).

In particular, please have available and bring with you any Court or other orders relating to previous access arrangements for your children and/or Personal Violence Orders which are or have been in place earlier.

I will cover many of these issues with you during the intake session, but it is best to start thinking about and listing them as soon as possible. If you have a lawyer, discuss with them these topics and whether there are other issues which you should bring to my attention.

While it is not necessary for you to have retained a lawyer before attending a Family Law Dispute Resolution session, because of the emotions which may arise during the session, as well as the far reaching effects that any agreement may have on the lives of you, your former partner and your child/ren, I recommend that you seriously consider consulting a lawyer or family counselling service before attending a mediation session.

When and where do Intake Sessions and Mediations Take Place?

I usually hold Intake Sessions and Mediations during business hours, but it may be possible to schedule them in evenings or on weekends, depending on suitability and the availability of rooms. I prefer to conduct these sessions in person. They may be held in the office of your lawyer, or other rooms which have been arranged, but I may, in appropriate circumstances, hold them by video conference.

Fees

I charge $350 per hour plus GST for Intake Sessions (which usually take 1 ½ to 2 hours for each individual). Where the matter proceeds to mediation I have a package rate of $2,500 plus GST which includes those Intake Sessions, my preparation and administrative time, plus an initial Mediation session of up to 6 hours duration. Extra sessions and assistance writing up orders (beyond the 6 hour period) are charged at the hourly rate. Where necessary, room hire is charged at cost.