Terms and Conditions to Mediate

What is Family Dispute Resolution?

Family Dispute Resolution (FDR) Mediation is a process facilitated by a registered FDR Practitioner. The purpose of FDR is to help people to discuss and negotiate a resolution to issues that relate to co-parenting, financial or property matters following a separation or divorce. FDR is a voluntary process in that you can end at any time however it is required that you attempt to resolve your issues by FDR prior to going to court for children’s matters and highly encouraged for financial matters.

FDR must be attended before applying to the Family Court in relation to child matters, unless an exception applies.
If a person wants to apply to the Family Court for an Order in relation to a child, they will need to obtain a 60i certificate (66H certificate for Western Australia residents) from the FDR practitioner before applying, unless an exception applies.
The Family Court may take into account the certificate when deciding whether to make an Order that refers the parties to FDR or to award costs against a person.

The FDR Practitioner has an obligation to you and the other people who participate in FDR to maintain a safe and fair process. They also have mandatory reporting obligations if they have credible disclosures of child abuse and are required to ensure that the best interests of any children affected by your decisions are considered. Your FDR Practitioner qualifies as a Registered Family Dispute Resolution Practitioner (FDRP) under family law legislation and has many years of experience in providing Family Dispute Resolution.

Roles and Responsibilities

You and the other participants are responsible for resolving your dispute.

The FDR Practitioner’s role is to facilitate the mediation process ensuring that it is safe and fair with a focus on the best interests of any children related to the FDR. Their goal is to help you to reach an agreement that is mutually agreeable and in the best interest of any children related to the FDR.

Legal or Other Advice

You are encouraged to seek specific legal advice so that you know the cost, duration and likely outcome of legal action. The more you understand your alternatives the more you can make informed decisions during mediation. You may also like to seek financial advice regarding your options prior to mediation.

If it becomes apparent to the FDR Practitioner that you are mis-informed they may provide you with information (not advice unless also a lawyer) or advise that you seek further legal advice.

Generally, FDR is a three-way conversation with the parties to the dispute and the FDR Practitioner. In some situations, child consultants, mature children or other professionals may be included in the process.

Neutrality and Conflict of Interest – The FDR Practitioner must not have a conflict of interest that could bias the process. That means that they may not benefit from a specific outcome of the dispute or show a preference or bias towards either party to the mediation due to a prior relationship or personal gain for the FDR Practitioner.

Terminating the mediation and taking breaks – Any party can end the mediation at any time, for any reason. If the FDR relates to parenting matters the FDR Practitioner can issue a Section 60i Certificate to allow you to proceed to court for judgment.

The Family Dispute Resolution Process

Pre-Mediation Session – The FDR process begins with a mandatory individual Pre-mediation process to determine if FDR is appropriate before a FDR practitioner can provide FDR.

The FDR Practitioner must be satisfied that each party to the mediation can negotiate freely. FDR will consider:

Any history of violence between the people involved in the dispute and the impact that it may have on their ability negotiate freely
If there is likely to be a safety risk for people involved
If there is a risk that a child may suffer abuse
Equality of bargaining power
The emotional, psychological and physical health of the people involved
Any other matter that the FDR practitioner considers relevant the proposed FDR

If, after considering these matters the FDR practitioner is not satisfied that the FDR is appropriate, the FDR practitioner must not provide FDR.

At the individual pre-mediation process, the FDR practitioner will, if mediation is appropriate for you, help you to prepare for the mediation session. If your issues relate to children’s matters and the FDR Practitioner decides that mediation is not suitable, they will issue you with a 60i Certificate which will allow you to go to court.

Mediation Session – This is the joint mediation session. The mediation session can be conducted in different ways to ensure the best outcome for all clients.

Opening Statements by the FDR Practitioner – the FDR Practitioner introduces themselves and discusses this agreement and ensures that you understand the FDR process and Ground Rules.
Opening Statements by the participants (if appropriate) – you will then be given an uninterrupted opportunity to briefly outline the issues you would like to resolve during the mediation session. Generally, these relate to Parenting or Property matters.
Setting the Agenda and identifying Considerations – the FDR Practitioner summarises the issues and forms an agenda for the session. In Property Mediations we may move directly to the next step if both participants agree that they would like to focus on financial matters.
Establishing the property pool and considerations (financial mediations only) – The FDR Practitioner will assist you in determining the assets and liabilities that contribute to your property pool and develop any strategies needed to determine the value of your assets and liabilities. You have an obligation to make full and frank disclosure of all assets even if you think that special consideration should be made. Once the asset pool is determined you will be invited to list the considerations you would like to be taken into account.
Exploration and Negotiation – the FDR Practitioner facilitates collaborative negotiation which looks at each person’s point of view, what you would like to change or the outcomes you would like, any underlying interests and concerns and your proposals to resolve the issues. In FDR we can consider all options and evaluate their practical and emotional impact without abuse or blame. This allows for creative problem solving with the best interests of your children always of high priority.
Private Sessions and breaks – private sessions are an opportunity to take time out from the exploration and negotiation to speak confidentially with the FDR Practitioner and/or an advisor. You can request a private session or a short break at any time during your FDR mediation.
Agreement – any agreements that are reached are reality tested for practicality and documented where appropriate.

Types of Agreements

Parenting or Property Agreement – a verbal or written agreement reached at an FDR Mediation is a record of what you have agreed to and is not legally enforceable.

Parenting Plans – A written and signed agreement about parenting. It is not enforceable but can in some circumstances replace the terms of a Court Order. A Court must take into consideration any Parenting Plan that replaces court orders.

Consent Orders: Parenting & Property – If you would like your Parenting and/or Property Agreement to be made legally enforceable you can apply to the Family Court for Consent Orders. You can do this yourself with a Do-it-yourself kit from the Family Court website (https://www.fcfcoa.gov.au/ or https://www.familycourt.wa.gov.au/ for WA Clients) or ask a lawyer to assist you. Once a property Order is made it is generally not able to be amended or overturned unless you can prove to a Court that there was not full disclosure or other wrong doing. A Consent Order shall be granted by the Family Court providing it is Fair, Just and Equitble.

Binding Financial Agreements – these agreements are a way of making a legally enforceable agreement without the Court making a determination on the terms. These agreements will require the assistance of lawyers as you will each require a signed statement of advice from independent lawyers and the agreement must be made voluntarily without any threat or coercion.

Confidentiality, Inadmissibility & Privacy

FDR Practitioners must not disclose a communication made in FDR unless disclosure is required or authorised under the Family Law Act 1975.

Mandatory Disclosure: A FDR Practitioner must disclose a communication made in FDR if it relates to mandatory disclosure of suspected child abuse or any other mandatory disclosure obligation they have.

Other exceptions to confidentiality: An FDR Practitioner may disclose a communication made in FDR if they reasonably believe that disclosure is necessary to:

Protect a child from risk of physical or psychological harm
Prevent or lessen a serious and imminent threat to the life or health of a person
Report or prevent a likely offense involving violence to a person
Report or prevent a likely offense involving intentional damage to property
Assisting an independent children’s lawyer to properly represent a child’s interests

An FDR Practitioner may disclose communication with the consent of the person who made the disclosure if the person is an adult or with parental consent if the disclosure is made by a child under 18.

Participant Confidentiality – Participants must not disclose confidential information discussed during FDR and no offer made during FDR is binding unless steps are taken to make it so. Participants are not to record the FDR sessions. Should the FDR Practitioner suspect that a participant is recording the FDR session, that FDR will be terminated immediately. By engaging in this mediation process, you agree not to discuss the details of the FDR with anyone not present in FDR unless one of the following exceptions applies:

Anyone you both agree to share information with eg. Financial planner or child consultant
Your individual professional advisors eg. your lawyers
People within your field of intimacy eg. close family members

You must inform people you provide information to that was disclosed during FDR to that the information is confidential and ask them to maintain that confidentiality.

Inadmissibility – Evidence of anything said or any admission made during FDR is not admissible in any court or proceedings, in any jurisdiction. Communication made when a professional consultation is being carried out, on referral from an FDR practitioner is also inadmissible in any court or proceedings in any jurisdiction. Ask your FDR Practitioner for a referral if you would like to ensure that communications with other professionals you consult with are inadmissible in court proceedings.

Written Agreements and Release of Information – The FDR Practitioner may only release information at the end of the mediation in accordance with instructions agreed to by both parties. For example, the mediator may write up and email to you the points of agreement from your mediation session or supply a copy of your agreement to your legal advisor if you give permission to do so. The mediator does NOT release notes or other materials used or taken in the course of the FDR process.

Storage and Disposal of Records – Family Mediation Australia retains in physical or electronic form all Forms completed during your FDR process. Every effort is made to ensure that your private information remains secure. Any and all information and documentation is NOT provided or released to a third party.

Complaints Process – A formal, external complaints process is available if you believe the mediator has breached any of these guidelines or their obligations as an FDR, please email info@familymediation.com.au to discuss your concerns. Disputes will be escalated to the mediator’s external dispute resolution process if matter is unable to be resolved in-house.

Mediation Ground Rules

Respectful Communication – FDR is a business-like process and participants are asked to communicate politely and constructively. The FDR practitioner will ask you to stop any aggressive or disruptive language or behaviour. Should a participant not comply, the FDR Practitioner will end the FDR session.

Future Focused – Blame or dwelling on the past is not part of the mediation process. FDR focuses on reaching a resolution to current issues. The FDR practitioner may redirect discussion towards practical problem solving if they feel it is necessary for them to do so.

Active Listening – Sometimes it is hard to say or hear what a person is really trying to communicate. FDR is a process designed to help people see others point of view and safely reveal what is important to them. The FDR practitioner will control the flow on conversation if necessary, to ensure that each participant has the opportunity to be understood.

Fee Schedule and Agreement

Initial Consultation (Pre-Mediation Appointment) – $165.00 per person (inclusive of GST). This payment is made at the time of booking your appointment. This appointment is conducted over the telephone.

A confidential initial meeting is conducted separately with each party. This session can:

provide you with legal information about what happens upon separation (NOT legal advice);
discuss your options to go forward;
discuss the family mediation process with you so you can decide if mediation is suited to your current circumstances. The cost of this session includes contacting the other party if you wish to proceed to mediation.
If mediation is not to proceed and a 60i Certificate is required, this is included in the fee.

Joint Mediation Sessions – $330 per person (inclusive of GST). This payment is made at least 48 hours before the appointment. Should payment not be made in this time, the appointment will be cancelled and a cancelation fee will apply to a party that has failed to pay their fee (50% of the mediation session fee). This appointment is conducted over the telephone or via video link.

In person mediation is available and fees start from $1,500 for the 3 hour session.

Meditation sessions are booked for 3 hours. Simple agreements can be reached in one session with most agreements requiring no more than 2 or 3 sessions. Our aim is to give you a service that is best suited to your circumstances. Each party is invoiced separately, and the final cost depends upon how many mediation sessions you need.

Additional mediation sessions are charged at a cost of $250 per person (inclusive of GST) for a 3-hour session for phone or online sessions. Additional in person sessions start from $1,320.

Any additional work to prepare for your mediation sessions is charged at $165 per hour (inclusive of GST), divided equally between both parties.

Should the Parties choose to participate in the 24 hour FDR or the 48 hour FDR packages, the price structure on our website will apply.

Agreements and/or Parenting Plan

We can prepare a financial agreement and/or parenting plan. This cost is included in amount paid by the parties at mediation. Our service documents your wishes but we do not give legal advice. We recommend that you obtain independent legal advice before submitting documents to Court.

Issuing a s.60i Certificate

There is no charge if either party for issuing a s.60i Certificate, except where a Client has requested a Certificate within 1 (one) month of an agreement being reached at mediation. This fee is $65.00. A Certificate will not be issued beyond 1 (one) month of an agreement being reached at mediation, and Parties would need to return to Mediation.

Payment Arrangements

Pre-Mediation (Initial Consultation) – Payment is required at the time of booking your pre-mediation session. If the second party refuses to participate in mediation due to this fee, the fee can be payable by the initiating party if that party agrees to do so.
FDR Mediation– Payment for FDR mediation session is required 48 hours prior to your session and fees are payable by each party unless otherwise agreed.
Cancellation – Any appointment cancellation or postponement needs to be done 48 hours before the scheduled appointment to avoid a cancellation fee. The cancellation fee will be 50% of the initial agreed fee for a mediation session, this fee is payable by the party that makes the cancellation or postponement, and the other party shall receive a refund for that appointment. Should both parties fail to make payment 48 hours prior to the scheduled mediation session, that appointment will be cancelled. There is NO refund for a cancelled or postponed pre-mediation appointment.
Parenting and/or Property Agreements, 60i Certificate – All fees and charges must be paid in full before an agreement or certificate will be issued to either or both parties.
Additional Cost – Any additional work conducted by the FDRP outside of the normal Parenting or Property mediation process will attract an additional charge of $165.00 per hour. Other document preparation, including an Application for Consent Orders will be charged depending on the complexity of an agreement.

The Agreement

By engaging in the Mediation process with Family Mediation Australia you hereby understand and agree to the above terms and conditions to mediate.