If you and your partner are separating, it’s important to know that you can reach an agreement about the division of your property and finances in mediation rather than going through the courts or using solicitors to negotiate an agreement on your behalf. The Australian Attorney Generals Department authorises Family Dispute Resolution.
Practitioners (FDR Mediators) to help separating couples negotiate their own agreements. And providing those agreements satisfy the requirements of the Australian Family Law Act, they can be formalised by the Federal Circuit and Family Courts of Australia (FCFCOA) as Consent Orders or Binding Financial Agreements. Consent Orders are legally binding orders which are as binding as a Court Order.
Court Orders are issued by a Judge, usually at the end of a very long and costly court battle and are often imposed on the parties involved. In order to do a Binding Financial Agreement you must both engage an independent lawyer, the lawyers negotiate and draft the agreement and it becomes legally binding as soon as it is signed. Consent Orders can be negotiated directly between you, or with the assistance of a lawyers or a FDR Mediator. Consent Orders are often the quickest and least costly way to formalise a financial settlement agreement because they can be negotiated directly between you with the assistance of an FDR mediator.
To achieve Consent Orders using FDR Mediation, couples work with their mediator to come up with solutions and a division of the assets and liabilities they both feel comfortable with. Your FDR Mediator will have provided you with a great deal of legal information and resources. Agreements reached in FDR Mediation must comply with the Family Law Act; your mediator takes the place of two lawyers and is required to be confidential and impartial in their dealings with clients.
The information, help and support of an FDR Mediator is often enough for separating couples to be able to understand their rights and obligations to enable them to negotiate an agreement that satisfies the Family Law Act. If not, using an FDR Mediator does not preclude you from getting legal advice or using lawyers; in fact, many people using mediation will also seek legal advice. They just want to avoid conflict and expense if they can.
In FDR Mediation, agreements are reached with consideration of both parties’ needs and entitlements, and importantly, with the welfare of any children of the relationship as the primary consideration. Once an agreement is reached, it can be drafted into consent orders signed by both parties and filed with the Federal Circuit and Family Court of Australia (FCFCOA). FDR mediators will also help you negotiate agreements detailing child access arrangements (custody) and parental responsibilities.
A significant change to the Family Law Act came into effect as of the 1st of September 2021; it is now compulsory to attempt mediation before you can start litigation (take a matter to court). What that means for separating couples is that using FDR Mediation, even if you think it might not be possible to reach an agreement with your former partner, is the smartest way to start your separation journey. Initiating mediation satisfies the Court’s pre-action procedure requirements and is the quickest and least expensing way of reaching agreements.
The one thing you need to ensure is whether your mediator is a qualified and registered Family Dispute Resolution Practitioner (FDRP) because only registered FDR Mediators have the authority to issue a Section 60(I) Certificate, which you will need to prove to the Courts that you have attempted mediation. Therefore, it is important to ensure your mediator has the right qualifications to assist you no matter which path your separation takes. Ideally, you are looking for someone with experience and the right qualifications. A university degree, a graduate diploma in Family Dispute Resolution, and a mediation certificate and registration with NMAS (The National Mediator Accreditation Standard).
WHAT IS FDR MEDIATION
Family Dispute Resolution is a specialist area of mediation that focuses on Family Law matters. It requires the FDR Mediator to have completed a Graduate Diploma in Family Dispute Resolution, to have completed 50 hours of supervision, and to comply with the registration requirements of the Australian Attorney Generals Department. Ideally, your FDR Mediator should also have a tertiary qualification in a complementary discipline like Psychology or Law. There are many forms of mediation often referred to as Alternative Dispute Resolution (ADR).
Other forms of mediation only require a certificate course and registration with an organisation such as NMAS to be able to engage with clients and call themselves mediators. The extra qualification needed to become an FDR Mediator means your mediator has studied units of Family Law, studied dispute resolution strategies and techniques, achieved a post-graduate degree, and met the professional development requirements of their registration. This ensures your FDR Mediator has the skill set needed to best help you and your former partner resolve your separation as amicable as possible.
FDR Mediators are required by the Family Law Act to advocate for the best interests of the children where there are children of the relationship.
Family Dispute Resolution is offered predominantly by three different types of providers –
1) Government-funded practices.
2) Lawyers and barristers offering FDR in addition to their legal practices
3) private FDR practitioners.
It is generally accepted that Government-funded FDR practices are highly regulated and driven by compliance requirements and a funding model that sees them having long wait lists. Lawyers and barristers are often still practising as lawyers and barristers, FDR Mediation is an addition to their practices. They are Officers of The Court, and their first obligation is to the law. To switch focus to what is in the best interest of the children of the relationship is sometimes difficult for lawyers to achieve.
Lawyers will often still charge like lawyers, and it is important to know that a lawyer cannot act as your lawyer and your mediator simultaneously. Quality private FDR practitioners who only practice FDR Mediation are hard to find but are worth searching for. In your search, you will find a lot of new FDRPs who often have very little experience, especially with face-to-face mediations since COVID.
Imagine what you could achieve if you can find an experienced FDR Mediator who has the required qualifications, skills, experience, rooms, and facilities to support you and your former partner, a practitioner who is very child-focused, who is committed to helping you reach agreements for both parenting and financial matters, and who will go that extra mile to ensure you and your former partner resolve your differences as quickly, as amicably and as cost effectively as possible.
When you are researching your FDR mediator, look for their qualifications, make sure mediation is not just a side hustle, and ask how many mediations they do a month, you’re looking for at least 3 maybe 4 or more. Cost should not be your primary concern, why? Because should mediation fail, a lawyer will cost you two, three, or maybe four times the hourly rate that even the most expensive FDR mediator will cost you.
Experience FDR Mediators understand they are engaging with families and supporting couples through a difficult life transition. Your FDR Mediator cannot provide legal advice however, they will provide you with information and options, to help you make the best choices possible. With an experienced private FDR Mediator, you have an 80% likelihood of reaching an agreement for both your parenting arrangements and financial settlement.
HOW FDR MEDIATION CAN HELP WITH PARENTING ARRANGEMENTS
FDR Mediators are trained in conflict resolution strategies that help couples reach an agreement, that is child and family-focused, after all, you are still your child’s family, you are just not an intact family. When it comes to the care and well-being of your most precious family members, it is important to use an FDR Mediator, they are one of only a handful of professionals who are required by the FCFCOA, to advocate for the best interest of the children of the relationship. Lawyers represent their client’s interests, children are rarely their clients, so children risk becoming collateral damage in a legal battle over parenting arrangements.
Family Dispute Resolution (FDR Mediation) was created as an alternative to litigation and court, it is a genuine alternative that offers separating couples much better outcomes. An experienced FDR Mediator understands that children’s needs are different at every stage of their development. Care arrangements for very young children are different from the care needs of an older child or teenager. Your FDR Mediator should have experience in all areas of care and access for children of all ages, and provide a Child Focused Process and if appropriate, Child Inclusive Mediation. A qualified FDR Mediator will help parents stay focused on the children of the relationship.
They will help parents negotiate a Parenting Plan that forms the basis of their care agreement and stands as the document they refer to if they have a disagreement. Unlike Consent or Court Orders, a Parenting Plan is quickly and easily reviewable. As children grow and circumstances change, so will your parenting and care needs change. Having a service and a document to fall back on, helps alleviate conflict and uncertainty. An FDR Mediator encourages communication between parties (where appropriate) and provides resources and examples of good co-parenting models to aspire to. FDR Mediation is designed to help parents move through this new experience and become confident single parents who are able to focus on their children, not the problem.