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What are Mediation, Family Dispute Resolution and Mediation Style Conferences?

October 2, 2019

Mediation table

They represent a much faster, cheaper and more empowering process to help resolve disputes, because decisions are made by the parties themselves.

When parties separate, strong emotions, concern about their children, and financial uncertainty can make it difficult for them to agree on the division of their assets and how to make arrangements for their children.

In situations where parties are unable to work out arrangements for their children (such as where the children will live and how much time they will spend with each parent), they are compelled by the Family Law Act (for married couples) or the Family Court Act (for unmarried couples) to attempt Mediation – often referred to as Family Dispute Resolution (FDR) – with a qualified Family Dispute Resolution Practitioner (FDRP) prior to making an application in the Family Court of Western Australia.

In the event that:

  • the FDRP considers the matter unsuitable for Mediation;
  • one of the parties refuses to participate in Mediation; or
  • the parties are unable to reach an agreement,

the FDRP can issue a 60I certificate, which will allow the parties to file an application in court.

Where parties are unable to work out how to divide up their assets and make decisions about property and financial matters, they are also obliged to attempt Mediation as part of the Pre-Action Procedures.

Often parties will feel more comfortable having a lawyer providing them with advice prior to, and representing them at Mediation/FDR.  This is referred to as a Mediation Style Conference (MSC).

MSCs can be conducted in relation to parenting matters, financial matters or both.

Mediation and MSCs are confidential processes that encourage parties to have a conversation about their children and/or finances in a safe and respectful way. 

They are facilitated by experienced, independent and impartial professionals and held at a neutral venue. The Mediator/FDRP can guide and facilitate the discussion on parenting, financial and property issues and assist the parties to reach a resolution.

The desired outcome is for parties to formulate a plan which can then be reviewed by lawyers and converted into an application for Consent Orders, which is then sealed by the Family Court and becomes binding court orders.   It’s a much faster, cheaper and more empowering process, and is generally preferable to going to court because decisions about matters as important as children’s welfare and the division of parties’ assets are made by the parties themselves.

The following issues and more can be resolved by Mediation or MSC:

  • children’s living arrangements;
  • education and after school activities;
  • handovers;
  • division of school holidays and special occasions;
  • relocation;
  • expenses for children;
  • travel with children;
  • division of assets;
  • payment of expenses; and
  • division of superannuation benefits.

How do I prepare for mediation?

Good preparation will help achieve a positive outcome through this process. The more informed you are, the more likely you will be to be able to identify the issues clearly, develop options and understand potential outcomes.

The best way to do this is to consult an experienced family lawyer before your Mediation.   They will help you understand your legal rights, explain the Mediation process, advise on any documentation that may be required to support your case, and formulate the agreement.

Good preparation will also help you answer questions like:

  • What are the issues under dispute?
  • What are the best interests of the children?
  • What am I prepared to discuss?
  • What are the options for ending the dispute?
  • Am I being realistic?
  • Would I get what I want if I went to Court?
  • How far am I prepared to negotiate?

Preparing for Mediation may take a little time and effort but the more you put in, the more likely you are to achieve a constructive outcome.  It can be enormously beneficial if you learn as much as you can ahead of time about how mediation works, obtain the facts and understand the procedures so that you don’t have any unexpected surprises.

Paterson & Dowding is one of the oldest and most highly regarded family law firms in Perth and Joondalup and has a team of highly experienced and qualified Lawyers, Mediators and FDRPs who accept instructions in all areas of Mediation, including financial and parenting matters.  All of our Lawyers are qualified to provide advice in relation to, and represent parties during, Mediation and we also have a Mediation Style Conference Convenor, two Nationally Accredited Mediators, and two Family Dispute Resolution Practitioners.

If you want to learn more about how Mediation can help parties to reach agreement on parenting and financial disputes without having to go to the Family Court, please contact us on 08 9226 3300.

More about the author

Meredith Hunter, is a Managing Associate at Paterson & Dowding and a Mediator, Arbitrator, Family Dispute Resolution Practitioner, Independent Children’s Lawyer and 2019 Doyles Guide Recommended Parenting Lawyer.

Read more about Pre-action Procedures – https://www.familycourt.wa.gov.au/P/pre_action_procedures.aspx

Read more about Family Dispute Resolution – https://www.familycourt.wa.gov.au/F/family_dispute_resolution.aspx

 

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