Pre-Mediation for Parenting Matters
What is Pre-Mediation?
Pre-mediation refers to the processes undertaken before a mediation session is scheduled to determine if mediation is appropriate and if it is to help the participants prepare.
What is Family Dispute Resolution?
Family Dispute Resolution (FDR) in its current form, was introduced through amendments to the Family Law Act 1975 in 2008.
The purpose of FDR is to help families to work out their own agreements and to stay out of the family court.
What is a Section 60i Certificate?
Most mediation totally voluntary but this requirement under Section 60i to at least attempt mediation is important for you to understand. In fact, unless an exception applies, you must attempt Family Dispute Resolution before you are able to lodge an application with the family court for parenting matters.
The Family Dispute Resolution practitioner has the responsibility of determining if FDR is appropriate and if so asking you to attempt it. If FDR does not proceed they can issue a Section 60i Certificate which gives a reason for it not proceeding. If the FDR Practitioner determines that FDR is appropriate but you refuse to participate they must issue a certificate to that effect.
If your dispute ends up in court and you have refused to participate in FDR without an acceptable reason the court could order you back to mediation or could even award costs against you.
If you have concerns about your safety or ability to participate in FDR please talk to our practitioner. You will never be forced to participate in a process that you don’t believe is appropriate for you.
The principles of FDR
The part of Family Dispute Resolution that is voluntary is the outcome. It is completely up to you if you reach agreement and you can end the FDR process if it is not working for you.
The other key things to understand about Family Dispute Resolution is that it supports self-determination, it is confidential, inadmissible as evidence in court and focused on the best interests of your child an also on your best interests.
Not surprisingly Family Dispute Resolution is facilitated by Family Dispute Resolution Practitioners (FDRP’s) FDRP’s are mediators with a post graduate qualification called Graduate Diploma of Family Dispute Resolution or equivalent who have been accredited by the Australian Attorney Generals Department.
Don’t work with unqualified mediators for family law issues. Even if they call themselves Family Mediators if they are not Family Dispute Resolution Practitioners they are not properly trained, you have no proof that they meet the legal and ethical standards and they can not issue you with a Section 60i Certificate.
FDRP’s are trained in family law and also to work with people who are experiencing the things you might be experiencing at the end of your relationship. Anger, shock, frustration, sadness, fear and sometimes relief are just a few of the emotions that our clients are typically dealing with.
Your FDRP will create an environment where you can meet respectfully and form an alliance in resolving problems that they are experiencing.
FDRP’s may also be lawyers, psychologists, counsellors or have other backgrounds but when they are working with you in Family Dispute Resolution their role is that of a neutral, independent third party facilitator.
What does a FDRP do in Pre-Mediation?
The FDRP’s job is to help you to talk to the other person about the issues that are causing problems for you both.
Before any meetings with you both they will meet privately with each of you to make sure that Family Dispute Resolution is appropriate and to help you to prepare for your first session.
This pre-FDR process involves:
- Identifying if there are any reasons that FDR should not go ahead:
- The most common reason for FDR not proceeding is safety. If the FDRP feels that participating in FDR will increase the risk of harm to you or your children from the other party they will not proceed with Family Dispute Resolution and issue you with a section 60i Certificate.
- Other reasons for not proceeding usually relate to self-determination if your physical or emotional state is very low or your ability to make decisions are affected by substance abuse or mental illness the FDRP may suggest deferring FDR till you are well enough.
- Working out what issues are important to you and why so that you have clarity about:
- Your position. What you want to achieve
- Your interests. Why that is important to you
- Understanding your current situation and how you, your former partner and your children are coping.
- If the FDR relates to finance and property matters then they will also help you to prepare by putting together a list of your assets and liabilities and what they are worth.
- Getting legal and other advice. Family Dispute Resolution is a decision-making process where you make the decisions so an important part of preparation is getting good quality legal advice as a minimum. In some situations, financial and other advice is a good idea as well. The FDRP can help you to prepare a list of questions such as:
- What is the worst alternative to negotiating an agreement? (WATNA)
- What is the best option if we don’t reach agreement in FDR? (BATNA)
- What is the most likely outcome if we go to court? Why? (Considerations)
- What will going to court cost and how long will it take for the court process to be complete? (based on their other current clients)
What doesn’t the FDRP do?
- The FDRP will not give you advice – legal, counselling, financial, or any other advice although they may ask questions to check your understanding if they think you are uninformed
- The FDRP will not judge you or decide who is right or wrong
- The FDRP will not take sides or make decisions for either of you
- The FDRP will not tell you what agreement you should They will help you by writing up your agreement and helping you to think about how it will work in the real world now and into the future.
- The FDRP will not give up too soon. Sometimes the only person in the room who believes that a resolution is possible at the start is the FDRP. That’s because they are not part of your problem so they can see the big picture. They won’t give up until you can as well.
Why give Family Dispute Resolution your best effort?
Reaching an agreement in family dispute resolution is much better than going to court for many reasons, including:
Time – you can start the process immediately and move through the process at your own speed. Court runs to its own timetable. It is usually a few months from application to your first hearing and you may be caught up in the family court processes for years before your case is finally resolved.
In the time it takes to get final court orders you could have reached an agreement, trialed it for a while, got it made into Consent Orders if it was working for your family and been through a couple of FDR Reviews so that your Parenting Plan / Court Orders grows with your family.
Cost – the other very significant benefit of Family Dispute Resolution is that it is much less expensive than going to court. For one or two thousand dollars, you could have a solid, sustainable agreement for moving forward with co-parenting or your property settlement. Even getting started on the court process routinely costs $10,000 – $30,000 and most people end up paying a lot more than that.
- You’ll pay a bit more if your issues are complex or you and your former partner are experiencing high conflict. We bring in other team members to support your family through the process.
- You’ll pay even less if you fit into one of our hardship programs.
Commitment and communication – Most people considering FDR are reluctant to believe that it could work for them because the communication between them and the other person is at an all time low. It may have become nasty or abusive, there may be a Family Violence Intervention Order in place making conversation even by email or text really difficult.
One of the most common questions we get is how can FDR help with that? It can because future communication can be one of the topics on your agenda. If the way you are communicating or the way the other person is communicating with you is causing stress, anxiety or refusal to communicate then that is something that needs to be discussed and negotiated.
The reality is that after separation you need new relationship rules about a lot of things and especially about how, when and why you communicate with each other.
Because you can’t be forced to agree to anything in Family Dispute Resolution the issues and options get explored until you find a way forward that you both can agree on. That makes the agreements reached in a well facilitated Family Dispute Resolution process much more robust and sustainable.
Confidentiality and Inadmissibility
FDR is private and confidential. Going to court is not. Even if you are not able to reach agreement in FDR nothing said during FDR and none of the proposals or options considered can be used as evidence in a court. That is a good thing because it means you can really try to get an agreement, consider things fully and openly without fear that any concessions you make when exploring resolutions will be used against you by the other sides lawyers if you can’t sort things out.
If you’ve behaved badly it also means that you can make a private apology and start rebuilding your new relationship as co-parents.
The FDRP is bound by strict confidentiality rules, as outlined in Section 10H of the Family Law Act 1975, and cannot speak about anything discussed in FDR with others without your permission except where there is a need to protect persons or property from harm.
They must make a report if they feel that a child is being abused or at risk of future abuse or neglect and they may take steps under their duty of care if they think that other people or property is at risk.
Any professionals the FDRP refers you to are also bound by the same confidentiality and inadmissibility provisions. If you think that you could benefit from some phychological support but are worried that what you say may be used against you at a later date ask your FDRP to refer you. That will invoke the inadmissibility provisions in section 10J of the Family Law Act 1975.
What type of issues can be dealt with in FDR?
FDR is used to resolve issues and establish mutually beneficial agreements in a number of different situations including:
- Issues between husbands and wives such as financial settlements and parenting issues for as long as children are dependent
- Issues between extended family if grandparents or other family members are primary care givers for children they may need to be involved in the negotiation of a Parenting Agreement
- Issues between parents and adolescents
Where does FDR happen?
Mi FDR Centre is in Bentleigh East and we also practice out of offices in Melbourne CBD by appointment. Video FDR is available for people throughout Australia and the world using a computer or tablet device.
We use video FDR in preference to shuttle FDR if there are any safety concerns or other issues that makes face to face FDR not possible and for convenience as it avoids the need to travel.
What happens in the safety screening session?
Safety screening sessions are required for all Family Dispute Resolution FDRs, including FDR Parenting and FDR Property.
In the private safety screening session, the FDRP will meet with you and together work through a safety screening procedure / questionnaire. During the safety screening session, you and the FDRP will work through the questionnaire discussing your situation to ascertain:
- Your safety
- The safety of the other party
- The safety of others involved including any children
They will help you to review your safety plan if you have one and prepare one if you identify that there are risks to your safety.
How do I prepare for FDR?
Because you are the person in control of what you say at the FDR it is important to prepare. You can prepare by thinking about the following:
- What issues are in dispute, including the facts and sources of conflict?
- What is important to you to resolve the dispute? What do you really want? And why?
- How can you communicate this information, both to the FDRP and the other participant?
- What will you say at the start of the FDR to help identify the key issues and create an agenda?
- What do you think the other participant wants? How might they see the issues?
- Is what you want in the best interests of your child/ren for their age and physical and emotional needs?
- What are some ways that the issues that concern you could be resolved? What could you ask them to do? What could you offer to do?
- What is the reality of your situation? What has the dispute cost you already? What will it cost you if it isn’t resolved? What would it cost if you can’t sort it out in FDR and have to go to court? What if you don’t have the money to go to court?
- What are the possible outcomes if you did go to court?
What do I need to take to the FDR?
The FDRP will talk about this during the pre-mediation but there is no need for many documents in FDR. The exception is in Property FDR’s as you will want to have your list of assets and liabilities and their values and identifying information.
You may like to put together a list of your issues and the things you’d like to resolve. Because FDR is not a judgement process you don’t need evidence the way you do when you go to court.
Documents that may be relevant, depending on the particular situation are:
- Notes (Including things you want to say, discuss, proposals, advice from advisors)
- Quotes, valuations, appraisals, invoices and photographs
- Formal documents for example court orders, previous parenting plans
- Notebook and pen for taking notes
- Focus on future: We will not dwell on things that did not work in the past, but instead will focus on the future we would like to create. The FDRP is given permission to redirect discussion when necessary, also without making
- Take turns: We agree to take turns speaking and not interrupt each
- First names: We agree to call each other by our first names, not “he” or “she.”
- No put downs: We agree to not blame, attack, or engage in put-downs and will ask questions of each other for the purposes of gaining clarity and
- Show respect: We agree to listen respectfully and sincerely try to understand the other person’s needs and
- Constructive FDR: We agree to make a conscious, sincere effort to refrain from unproductive arguing, venting, or narration, and agree to use our time in FDR to work toward what we perceive to be our fairest and most constructive agreement
- Respective Communication: We agree to not swear during FDR or use aggressive language. We also agree to not be disruptive during the
- Manage your own emotions and energy: We will request a break when we need
What happens in the FDR session?
FDR is a structured process where the FDRP facilitates the process while you are responsible for what you choose to talk about and the agreements you reach.
FDR is flexible in that you are able to take a short break during the process and/or you or the FDRP may ask for a private session with the FDRP. This is a chance to talk confidentially with the FDRP and is often suggested by the FDRP after you have finished exploring the issues and started to make offers of how the dispute could be resolved.
If agreed by all parties involved, legal or personal support persons may be present during FDR. This will be discussed during the pre-FDR and risk assessment session.
The support person(s) role is advisory to that party only and while present will not, in general, take part in the FDR itself. Support and advice can be given within private sessions with the party, not in the FDR itself. A support person is someone who can:
- Give you emotional and practical
- Help you understand the issues in dispute and what is important to
- Gently challenge you if you get stuck on one
- Take notes or remind you later of things
Your support person could be:
- a family member
- a friend
- a work colleague
- a social worker
- a union representative
- a counselling psychologist
- a professional adviser (for example, your lawyer, accountant, financial adviser or financial counsellor)
You must give notice before a support person will be allowed into the FDR and will only be allowed to attend upon agreement of the mediating parties and the FDRP. It is necessary that any support person attending the FDR sign a confidentiality agreement before the session.
Getting the most out of FDR
For FDR to have the best possible outcome for you it is recommended that you:
- Approach it with an open mind, listening carefully to what is being
- Take responsibility for your actions and decisions and for being clear about what is the
- Be genuine in wanting to resolve the dispute. An early resolution is a win for
- Seek support when you need
- Be informed. Gather the advice and information you may need prior to going into the
- Gather your thoughts before speaking and speak clearly and
- Be prepared to take turns at speaking and not interrupting the other party or speak over them. If there is something you need to respond to, write it
- Make sure that you understand what is being said and ask questions if you aren’t sure of
- Stay positive and trust in a process which has been proven repeatedly to be successful, even if it’s not feeling like that during it, especially in the initial
- Listen to the other participants’ point of view and suggestions and share your
- Don’t focus on the blame game or what has led to this point rather focus on the way forward from here creating win-win solutions that enable the matters to be resolved quickly and effectively