Is mediation for me? Mediation in custody/ parenting cases

Are you involved in a dispute about your children? You are not alone! The number of cases started in the Family Court of Western Australia increased by 6% in the 12 months ending August 2015.

You may not be aware that the current time that it takes for a matter to be resolved (at a trial) in the Family Court is 89 weeks from the time an application is first commenced.

Rather than wait the 12-18 months to have the Family Court determine your dispute, an alternative is to participate in mediation.

Why mediate?

Unless you are eligible for an exemption, Family Dispute Resolution (“FDR”) or mediation must be undertaken before you can apply to the Family Court to seek parenting orders in child custody/ parenting disputes. During mediation, all parties must make a “genuine effort” to resolve issues in dispute.

Making a genuine effort involves considering the other party’s point of view and having a willingness to consider options put forward by the other party or the FDR practitioner for resolving the dispute.

When participating in mediation you should try and focus on what your child or children need and what is best for them. It is often helpful to avoid talking about what has happened in the past and instead to focus on how you and the other party can move forward.

What are the exemptions?

The following exemptions might be considered by the Family Court to be acceptable reason/s not to participate in mediation:

  • If you are applying for consent orders;
  • If you are responding to an application;
  • If the matter is urgent (the Family Court will assess if the alleged grounds of urgency are sufficient to warrant an exemption);
  • If there has been, or there is a risk of, family violence or child abuse;
  • If a party is unable to participate effectively (e.g. due to incapacity or geographical location); or
  • If a person has contravened and shown a serious disregard for a court order made in the last 12 months.

What if my spouse or partner won’t mediate?

If your spouse or partner won’t mediate, or mediation has failed to resolve your dispute, you can ask the FDR practitioner or mediator for a certificate confirming you have invited your spouse or partner to attend mediation with you and either

  1. they have refused to participate; or
  2. the mediation did not resolve the issues in dispute; or
  3. the mediator determined the case was not suitable for mediation (for example, in cases involving family violence and abuse or a risk of family violence or abuse).

Who will be the mediator?

Mediation can be undertaken by a private mediator (a person qualified and trained to conduct mediation, known as an FDR practitioner) or a Government funded organisation, for example a Family Relationships Centre.

Only accredited FDR practitioners can issue FDR certificates under the Family Law Act 1975 (Cth).

Who attends mediation?

Ordinarily only those people who are directly involved in the disagreement will attend mediation.

Your lawyer can attend mediation undertaken by a private mediator with you and can attend mediation conducted by a Government funded organisation, if permission from the relevant organisation is given.

Children are not usually involved in mediation.

How long will mediation take?

The process of mediation (including preparation) may take several weeks, or in some cases months.

Initially, both parties meet with the mediator individually for what is known as an ‘intake session’ or ‘child-focused session’. This allows the mediator to obtain an overview of the issues in dispute and assess any risk factors.

Once both parties have attended their intake session the mediator will make an assessment about whether the matter is suitable for mediation. If the mediator considers the matter is suitable, a joint session is then scheduled. If the mediator does not consider the matter is suitable, he/she will inform the parties and will issue a FDR certificate (if requested by a party to do so).

A joint session can be conducted on a ‘shuttle’ basis, which means that the parties are in separate rooms and the mediator moves between the rooms during the mediation. A ‘shuttle’ mediation is usually reserved for exceptional cases.

It is possible for more than one joint session to occur if there are matters that need to be discussed further or reviewed.

What will mediation achieve?

If an agreement is reached the mediator or FDR Practitioner may assist the parties to evidence their agreement, for example by helping to prepare a parenting plan that the parties can sign. This agreement may then be registered at the Family Court to make it binding, such as in the form of a consent order or parenting order.

If an agreement is not reached, a registered FDR Practitioner can issue a FDR certificate that is required to proceed to the Family Court as evidence of parties making a “genuine effort” to resolve their dispute.

Benefits of mediation:

Some of the benefits of mediation include:

  • it is confidential;
  • it is a fast and effective first step to resolving a dispute;
  • if an agreement is reached it saves the time, money and potential stress of Family Court proceedings;
  • it is a more structured and dynamic form of dispute resolution than ordinary negotiation;
  • it increases the control the parties have over the decision – if a dispute goes to Court, the decision will be left to the judicial officer;
  • compliance with agreements reached through mediation are usually high due to the fact that the decision was mutually agreed; and
  • the option of commencing proceedings in the Family Court will not be compromised if mediation is unsuccessful.

Further information

For further information on mediation in parenting/custody cases, or parenting matters generally, contact Carr & Co at contactus@carrco.com.au or 9322 8000.

 

Categories: Articles & News, Child Custody, and Children’s and Parenting Issues.