Family Law Mediation. What happens if I say No?

Family Law Mediation is also called Family Dispute Resolution (“FDR“) and is the first step in parenting and property proceedings.

Family Law Mediation is also called Family Dispute Resolution (“FDR“) and is the first step in parenting and property proceedings. Before commencing Court action, a party must provide a Certificate from an accredited Family Dispute Resolution Practitioner to say that the parties have made a genuine attempt at mediation. There are some exceptions and you should discuss any reservations that you have with either your Lawyer or the FDRP as one of the exceptions may apply in your circumstances.

There are several different Certificates that can be issued. The Certificate will say one of the following:

  • the other party did not attend
  • you and the other party attended and made a genuine effort to resolve the dispute
  • you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
  • the FDR practitioner decided your case was not appropriate for FDR, or
  • the FDR practitioner decided it was not appropriate to continue part way through the FDR process.

If you want to say No to mediation because of fears of violence or fears that your child has been abused, you should raise these concerns as there is no requirement for FDR where there has been family violence or child abuse.

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What happens if I just don’t want to go?

You should be aware that if you do not attend FDR or make a genuine effort to attend, this can influence the timing of your Court hearing and there is the potential that the Court may also order you to pay the other party’s legal costs.

The Court will be able to take into account your refusal to attend FDR if there is an application for costs. It is possible that the Court will make an order for the other party’s costs on the basis that you refused to attend mediation and thereby increased the costs of each party.

Before deciding whether or not to attend FDR it is important to seek legal advice. We are able to discuss your concerns with you and advise you if FDR is suitable in your matter. We are also able to discuss the legal concerns with the FDRP and obtain a Certificate noting that mediation is not suitable rather than you refused to attend.

Mediation Overview

What is Mediation?

Mediation is:

  • a structured conversation,
  • between two (2) or more participants,
  • about a dispute,
  • in which independent chairperson (the Mediator) hosts and guides the communications between the participants,
  • to help them identify and assess options, and
  • to reach agreement.
What can be discussed at Mediation?

Mediation is a commonly used practice for people who have separated to discuss issues in dispute between them including:

  • Parenting Arrangements,
  • Property Division,
  • Financial Support, and
  • Child Support.
Reaching Agreement at Mediation

With the help of the Mediator, participants can often come to agreement about some or all of the issues.

To ensure that the agreement is binding, they should then a Family Lawyer formalise the agreement by preparing the necessary documents for them to sign, usually a Parenting Plan, Consent Orders and/or a Binding Financial Agreement.

When Agreement cannot be reached

If agreement cannot be reached, the participants may choose to:

  • Attend a further Mediation,
  • Engage a lawyer and continue negotiations, or
  • Start Court proceedings.

Benefits of Mediation

It’s faster

Results can be achieved through Mediation within 3 to 4 weeks, whereas going through the Family Court or through lawyers alone generally takes 12 to 18 months, or longer.

It’s cheaper

Where time is saved, cost is also spared. In most cases, Mediation at an early stage can help to reduce legal fees by tens of thousands of dollars.

It’s confidential

What occurs during the Mediation, and any agreement reached, can’t be disclosed to the Judge or used in Court at a later stage (subject to limited exceptions to protect people or property from risk of harm).

You control the outcome

The structured process of Mediation supports the parties to participate in the conversation and to be directly and completely in control of an outcome which affects them.

It’s fair

The Mediator must remain neutral and impartial (so can’t impose any judgment on the parties or force any participant to speak or stay or agree).

There’s safety and support

The Mediator must ensure that each participant is in a safe and supported environment so they can participate effectively.

Your Mediator

Who is the Mediator?

The type of Mediator that you will have for your matter will depend on your specific matter. Mediators have completed specialised training to become qualified as a Mediator. All of our Mediators are also Specialist Family Lawyers and have extensive knowledge of the family law system. All of our Mediators are Nationally Accredited Mediators and are registered with The Australian Institute of Family Law Arbitrators and Mediators.

Mediator or Family Dispute Resolution Practitioner?

If there is a chance that the parents may want to make an application to the Court for Parenting Orders if agreement cannot be reached, the Parenting Mediation should be conducted as family dispute resolution (“FDR”).

FDR is a specialised type of Mediation that is performed by a Family Dispute Resolution Practitioner (FDRP) who is accredited with the Commonwealth Attorney-General’s Department.

If agreement cannot be reached, the FDRP is empowered to give the FDR participants a section 60I certificate which the participants need to provide when making a Court application for parenting orders (or the Court will reject the application unless certain limited exceptions apply).

What is the role of the Mediator?

The Mediator acts as a neutral third-party facilitator to help the Mediation participants to:

  • Stay focused on the issues in dispute,
  • Use courteous and appropriate communications,
  • Model hypothetical solutions to issues to demonstrate to the participants how the issues could be resolved,
  • Move from any entrenched stance they have taken about the issues or dispute, and
  • Reality-check any proposals to test how the proposed solution would work in any everyday sense to ensure a workable and enduring agreement is reached.

The Mediator cannot:

  • Disclose to the other participant any information discussed with you in a separate session,
  • Disclose to anyone what happened during the Mediation, except as required if there is a risk of harm to people, property or pets, and as a mandatory reporter of any risk to a child,
  • Act with a bias towards one participant,
  • Force the participants to participate in the Mediation,
  • Allow the Mediation to continue where any abuse is directed from one participant to the other, or
  • Force a participant to agree to any proposals.

Family Law Mediation

What happens at Mediation?

Each Mediation is tailored to suit the individual parties and their needs. However, most Mediations include:

  • An Intake process, where the Mediator gathers information about the participants and their concerns, and the history and nature of the relationship, details of any children, and any history of family violence or communications issues,
  • Initial meeting with the Mediator where each participant individually meets with the Mediator to discuss the process and any concerns they may have,
  • Joint sessions, which may be a face-to-face meeting around a table or a conversation by phone/AVL where the participants can discuss the issues in a safe and confidential way. This provides an opportunity for everyone to hear the other side’s perspective, to explore the issues in dispute and discuss options for agreement, and
  • Private sessions, where the Mediator meets with each participant separately to discuss their concerns, possible agreements, and options.

Recording any agreement reached, which may include a final agreement for all issues or a partial agreement concerning the issues the participants have been able to resolve.

Is Mediation confidential?

Mediation is a confidential process. Prior to commencing Mediation, all parties will be required to sign a Confidentiality Agreement and the Mediator will explain the confidential nature of Mediation to all participants.

The confidentiality of Mediation is a key benefit to the Mediation process. It encourages all participants to feel free to make a genuine attempt to resolve their matter without concern that any offers made in the Mediation process will be used against them in the future.  Importantly, communication that occurs in Mediation is inadmissible in any Court.

However, there are a few certain circumstances where the Mediator may be required by law to report things raised in Mediation.

A Mediator may be required by law to report certain disclosures or risk, for example a threat to harm someone. The Mediator will explain this at the commencement of the Mediation.

After a Parenting Mediation, the Mediator may issue a section 60I certificate to the participants. A section 60I certificate will indicate whether or not each party made a genuine effort to resolve the dispute in the Mediation.  This can be taken into consideration by the Court in determining whether or not to make an Order for one participant to pay some of the other participant’s legal costs.

Where Court proceedings are already on foot and the Court refers the parties to attend a private Mediation, after the Mediation, the Mediator must complete a Certificate of Dispute Resolution which indicates whether the parties made a genuine effort to resolve issues during the Mediation.

This Certificate is provided to the Court, but does not provide details of any of the communications or negotiations made in Mediation.

Types of Mediation

Parenting Mediation

Parenting Mediation is a type of Mediation that takes place between separated parents to reach agreement about co-parenting issues, such as:

  • Who the child/ren will live with,
  • How much time the child/ren will spend with a parent,
  • How long-term decisions are to be made by the parents,
  • Arrangements for special days and holidays,
  • Extra-curricular activities,
  • Travel, and
  • Child Support.

Which arrangements are in the child/ren’s best interests?

The main focus of a Parenting Mediation is achieving an outcome that is in the best interests of the child/ren. This is done by identifying and considering the children’s needs when discussing which parenting arrangements are in the best interests of the child/ren.

It can be difficult for parents to reach agreement about what is in the best interests of the child/ren as:

  • Parents can make incorrect assumptions about the children’s needs and preferences,
  • Children can tell each parent different things about what they want and need (as they do not want to tell the parent something that may hurt the parent’s feelings), and
  • There is no evidence at Mediation of the child/ren’s actual experience of separation.
Child Inclusive Mediation

Child Inclusive Mediation is a process which attempts to inform the Mediation participants of the children’s views and experiences after separation.

Child Inclusive Mediation is only appropriate where both parents understand the process and are willing and receive and listen to feedback from the children. Generally, children under 5 years of age are too young to participate meaningfully in Child Inclusive Mediation.

There are several factors that influence the effectiveness of Child Inclusive Mediation.  These include:

  • The age and maturity of the children. Child-Inclusive Mediation is only appropriate for children who are mature enough to participate and give feedback,
  • The capacity of the parents themselves. Some parents are not prepared to listen or take on feedback from professionals particularly when it comes to their own children, and
  • The risk of children being over exposed and over questioned as a result of the parental conflict. This is especially in matters that have a long history of Court proceedings.

Long term studies have indicated that there are substantial benefits for families who participate Child Inclusive Mediation, including:

  • Lower rates of returning to Mediation,
  • Greater stability of care arrangements, and
  • Better management of parenting disputes that have occurred since Mediation.
Property Mediation

Property Mediation is a type of Mediation that takes place between separated parties to resolve issues in dispute between them about how the parties’ property is to be divided between them, including:

  • The value of assets and debts,
  • Whether certain assets or debts should be included as part of the property division. This may be particularly relevant for property or debts acquired after separation,
  • How property should be divided between the parties: who should get which assets/debts and the overall percentage division of the net assets, and
  • The terms of sale of real estate, business or other asset.

A Property Mediation usually starts with the Mediator assisting the parties to work through the Balance Sheet to reach agreement on the assets, debts and superannuation to be divided between the parties.  If this is initially able to be resolved, the next step is for the parties to discuss how this property is to be divided between them.

Parenting Mediation

What issues can be dealt with?

Parenting Mediations can be used to address all types of issues that affect families and children, including:

  • How significant decisions are to be made about children (also known as Parental Responsibility),
  • The care arrangements for the child/ren, including how much time they spend with each parent,
  • Arrangements for special days and holidays,
  • How the child/ren are to communicate with their parents, including arrangements for phone calls or FaceTime,
  • The involvement of third parties, including grandparents, new partners and stepparents,
  • Financial support for the children, including child support,
  • How parents communicate with each other, such as the use of a parenting app to assist with communications,
  • How interstate and international travel arrangements may be made for the child/ren, and
  • Which extracurricular activities the child/ren will participate in and how the parents are to facilitate and pay for this.
What preparation should I do?

Most parents find that idea of attending a Parenting Mediation stressful and daunting. As such, it can be very helpful to take steps to prepare yourself for Mediation.

Some preparation that might assist you includes:

  • Obtaining legal advice from a Specialist Family Lawyer prior to the Mediation. By meeting with a Lawyer you will be able to get tailored legal advice that can assist you in the Mediation. This advice can include details about what might happen if you cannot reach an agreement and how a Court may determine which parenting arrangements are in the best interests of the child/ren,
  • Having a support network, including friends and family. Your support person is only able to attend in the Mediation joint session if the other parent consents, but can remain in a separate room to support you if you need them,
  • Getting help from a counsellor or psychologist. This may help you to develop strategies to assist you in the Mediation and also in your long term co-parenting relationship. If there is a history of family violence you should get assistance from a specialised family violence counsellor, and
  • Thinking about what you can do to be the best possible parent: are there courses or services that might assist you and can you make an effort to complete this prior to Mediation? For example, a parenting course, a parent support group.

Taking the time to think about why you are attending mediation, what you are hoping to achieve and what your priorities are. The checklist below may assist you with this.

Parenting Mediation - Preparation Checklist
  • Think about the big picture – if you could picture a perfect future for you, your child/ren and everyone involved what would this look like?
  • Work out what you would like to talk about, examples include:
    • Decision making,
    • Who the child/ren live with,
    • What time the children spend with the other parent/third parties,
    • Changeovers – where and when do they occur,
    • Special occasions – Christmas, Easter, birthdays, Fathers’ Day, Mothers’ Day
    • School holidays,
    • Communication with your child/ren and between the parents,
    • Education,
    • Medical treatment
    • Extra-curricular activities,
    • Passports and international travel, and
    • Finances:
      • Child Support,
      • Health insurance,
      • Medical expenses,
      • Education,
      • Extra-curricular, and
      • Day to day expenses.
  • Contemplate what the other parent wants to talk about.
  • Consider possible solutions and proposals: remember you can think outside the box.
  • Think about the practicalities. Consider:
    • Each parent’s other commitments, including where you live, work and other family responsibilities.
    • Children’s commitments, including where they go to school, extra-curricular activities, medical appointments.
    • Travel time.
  • Is there any information you should share with the other parent at Mediation or before Mediation, for example, school reports, work rosters and bus timetables. Prepare these documents and bring them with you for Mediation.
  • Make arrangements for the actual Mediation date: think about care arrangements for the child/ren, how you will get there, arrange enough time off work, take some food and know where you will park keeping in mind that the Mediation will take approximately 4 to 6 hours.
  • Have the contact details for your support network (including your Family Lawyer and Counsellor) to bring with you to Mediation in case you need them and contact them beforehand to make sure that they will be available for you to call during the Mediation.

Property Mediation

What issues can be dealt with?

Issues that can be addressed in Property Mediation include:

  • What items are to be included in the Balance Sheet?
  • What is the value of each item on the Balance Sheet?
  • What were the contributions of each party to the property on the Balance Sheet and the welfare of the family?
  • What are the current financial needs of everyone?
  • What are the future financial needs of everyone?
  • How can the assets be divided between the parties?
  • How can the agreement reached be implemented?
What preparation should I do?

You may feel intimidated about attending your Property Mediation.  Therefore it can be very helpful to take steps to prepare yourself beforehand.

Some steps you can take to prepare for your Property Mediation are:

  • Obtain legal advice from a Specialist Family Lawyer. It is particularly important that you have received legal advice before your Mediation about how a property division is calculated and what your likely entitlements are.  Without this advice, you may inadvertently accept an outcome at Mediation that is much lower than what you are entitled to.  Your Family Lawyer will also advise you about what would happen if you cannot reach agreement and your case goes to Court.
  • Consider what should be on the Balance Sheet, see below.
  • If you are considering getting a mortgage as part of any property settlement, explore your lending capacity and speak to your bank or a mortgage broker.
  • Talk to your support network, including friends and family. Use your support network for support and assistance.
  • Get help from a counsellor or psychologist. This may help you to develop strategies to assist you in the Mediation and also in your long term co-parenting relationship. If there is a history of family violence you should get assistance from a specialised family violence counsellor.
  • Take the time to think about why you are at mediation, what you are hoping to achieve and what your priorities are. The checklist below may assist you with this.
What is the Balance Sheet?

The Balance Sheet is a summary of all significant assets, liabilities and financial resources owned by either party (both jointly or in their own name). For an example of a Balance Sheet see the Federal Circuit and Family Court’s Balance Sheet here.

To prepare a Balance Sheet you may need to take the following steps:

  • Collect documents to determine the value of your assets and liabilities consider the following assets and liabilities:
    • Bank accounts,
    • Mortgages and credit cards,
    • Superannuation,
    • Shares, and
    • Vehicles such as cars, trailers, boats etc.
  • Consider the value of real estate, you may want to obtain a market appraisal or a formal valuation.

Exchange financial disclosure with the other party. This is where parties swap documents that help identify the values of the assets and liabilities. A solicitor may be able to help you with this.

Mediation and the Court

Mediation before commencing Court

The Federal Circuit and Family Court expects that people involved in Family Law disputes, for both property and parenting matters, will only commence Court proceedings as a last resort. Prior to commencing Court proceedings, the Court expects that people involved in a Family Law dispute will attempt to resolve this dispute by trying to negotiate an outcome.

There are pre-court procedures that must be complied with, except in limited circumstances, before a person commence Family Law Court proceedings. These pre-court procedures include:

  1. Exchanging relevant information, or disclosure,
  2. Inviting the other party to attend Mediation,
  3. Making a genuine attempt to resolve the matter at Mediation, and
  4. Putting the other party on notice of the intention to commence proceedings.

In most cases, commencing Family Law Court proceedings is the last resort, and often the worst-case scenario. Court proceedings can be very expensive, time consuming and stressful.

Mediation can provide a low cost and timely option for resolving Family Law disputes. Importantly, Mediation allow parties to have greater input into the negotiation process and the outcome.

Mediation after Court proceedings have commenced

After Court proceedings have commenced in a Family Law case, the Court has an ongoing expectation that parties will try to continue to look for opportunities to resolve their case. The Court will often Order in Family Law cases that parties attend Mediation as part of the Court process. This is to encourage parties to make a genuine effort to resolve their case without a Judge making a decision.

The Court will encourage parties to consider Mediation at any time during their matter, and particularly before a matter reaches Final Hearing. This is to ensure that parties have taken all steps to try to negotiate an outcome before a Judge makes a decision.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.

Solicitor Director
Family Dispute Resolution Practitioner