No relationship breakup is ever easy, especially when the financial burden of separation or divorce can be so heavy on the parties involved. On top of that, going to court to resolve your family law matters can be not only costly but also time consuming. Sometimes, the court process can take up precious financial and resources for years.
It is always best to consider litigation as a last resort, if you have exhausted other alternatives to resolving your dispute. It is for this reason that, in recent years, the courts have been placing greater emphasis on “Family Dispute Resolution” (FDR) processes which aim to assist parties to resolve disputes and settle matters outside of court.
Read on to get an understanding of two commonly used FDR processes for resolving disputes, namely, mediation and conciliation, and how they can assist you in your family law matter.
Mediation is a well-regarded FDR process which aims to assist parties in family law matters to settle disputes by discussing differences and attempting to negotiate a potential outcome that would work for everyone involved.
Mediation is normally facilitated by a trained third-party known as a “mediator”. A mediator is a trained professional whose main role is to act as an impartial third-party to facilitate discussions and negotiations and keep matters focused on resolving issues in dispute.
Mediation is usually a voluntary process parties agree to, however the court has also developed mandatory dispute resolution procedures in some cases in order to assist parties in avoiding the high costs involved with litigation. For example, in parenting matters, the court requires compulsory mediation to be attempted by all parents seeking to obtain orders regarding children unless an exemption applies. We consider the reason for this is because courts have recognised that mediation is, in fact, a proven and successful way of resolving many disputes.
Mediation can take place with all parties and/or their legal representatives in the same room. Or, as an alternative, it can be conducted via “shuttle”. This means that the respective parties will remain in separate rooms during the mediation, with the mediator moving between the rooms and having separate meetings with any legal representatives.
Failing to reach an agreement and section 60I certificates
It is a requirement under the Family Law Act 1975 (Cth) that separating couples seeking parenting orders of the court need to first indicate that a genuine effort to resolve the dispute by FDR has been attempted. However, it may be the case that you find yourself dealing with another parent who is not willing to make a genuine effort in this regard, or simply the fact that an agreement cannot be reached despite a genuine effort being made. In such circumstances, a form known as the “section 60I certificate” is necessary to be filed with the court. Only registered FDR practitioners can issue such certificates and they allow parents to commence proceedings for parenting orders.
The following are five types of section 60I certificates that can be issued:
- You did not attend FDR due to the refusal or failure of the other party to attend;
- You did not attend FDR because the FDR practitioner did not consider it would be appropriate to conduct FDR in your circumstances;
- The parties attended FDR and made a genuine effort to resolve the issue(s) in dispute, but an agreement was not reached;
- The parties attended FDR but one or more of the parties did not make a genuine effort to resolve the issue(s) in dispute; and
- The FDR process commenced, but the mediator considered that it would not be appropriate to continue.
If you receive a section 60I certificate and decide to file an application in court, you will need to file it together with your initiating application.
Another common FDR process is conciliation. Conciliation is similar to mediation insofar as its main purpose is to assist the parties in reaching an agreement on the various issues in dispute and, in so doing, to avoid the incursion of further legal costs.
Legal representatives are permitted to represent parties in this process and, sometimes, are court ordered to do so.
Notably though, the main difference is that the conciliation conference is conducted by a court Registrar. A Registrar is a court lawyer that exercises certain judicial powers, such as the making of Orders. At the conciliation conference, the Registrar will look at the case from both sides and assist in exploring options for settling your case without the need for a final hearing. A Registrar cannot give legal advice, however they can talk with you about the legal principles that are applied when deciding cases.
As with mediation, the parties are expected to make a genuine effort to reach an agreement at conciliation. With that in mind, you should go to conciliation in a spirit of compromise and adopt a practical approach.
Seek legal advice
Overall, it has to be said that both mediation and conciliation is more cost-effective and speedier than litigation which can often go on for years. However, we understand that every single case in Family Law is different depending on your individual circumstances and the needs of your family.
For this reason, knowing what type of FDR process is most suitable for your case, if any, and when to consider engaging in such events, can be confusing and even daunting for many people. This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.