Family Dispute Resolution (FDR) and Mediation

Family law disputes can be emotionally draining and complex, often involving sensitive matters such as divorce, child custody, property division, and spousal support. In Australia, the legal system recognizes the significance of resolving family law issues outside the courtroom, emphasizing the importance of dispute resolution methods that prioritize collaboration, communication, and the best interests of the parties involved. In this comprehensive guide, we explore the various forms of family law dispute resolution available in Australia, their benefits, and how they contribute to fostering amicable resolutions.

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Dispute Resolution – Maintaining Control of the Decision Making

Your child deserves living arrangements that support their happiness and development. That normally means having access to both parents – in a way that puts their needs first. 

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1. Mediation: Facilitating Constructive Dialogue

Mediation is a widely used form of dispute resolution in family law matters. It involves an impartial mediator who facilitates discussions between the parties to reach mutually acceptable agreements. Mediation provides a non-adversarial environment where each party can express their concerns and interests openly. The benefits of mediation include:

  • Empowerment: Mediation allows individuals to actively participate in decision-making, empowering them to shape the outcome of their dispute.
  • Confidentiality: Mediation proceedings are private and confidential, allowing parties to discuss sensitive matters without fear of public disclosure.
  • Cost-Effective: Mediation is generally more cost-effective than litigation, as it reduces the need for extensive court involvement and legal representation.
  • Preserving Relationships: Mediation focuses on fostering open communication and understanding, promoting healthier long-term relationships, particularly when children are involved.

How to Reach Agreement Regarding your Children’s Care Arrangements

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Parenting Plan Creation 

You and your ex-partner agree on how to parent your child in a formalised document. 

Informal Mediation

Informal Mediation 

If you can’t agree on certain aspects of parenting, you can try to reach an agreement through informal mediation. 

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Family Dispute Resolution 

Before you go to court, you’re required to undergo family dispute resolution (FDRR), a formal type of mediation held by an accredited practitioner. 

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Court Action 

When FDR fails, you can seek a parenting order from the FCFCOA, which is a legally binding directive that you must both abide by. 

2. Collaborative Law: A Team Approach to Resolution

Collaborative law is an alternative dispute resolution process that encourages parties to work together, with the assistance of their lawyers, to find mutually beneficial solutions. In collaborative law, the parties commit to resolving the dispute outside of court and agree not to engage in litigation. Key features of collaborative law include:

  • Team Approach: Each party is represented by their own collaboratively trained lawyer, and additional professionals such as financial advisors or child specialists may be involved as needed.
  • Transparency: Collaborative law encourages full disclosure of information, promoting an environment of trust and ensuring all parties have access to the same information.
  • Problem-Solving Focus: The emphasis is on finding creative solutions that meet the needs and interests of both parties, rather than pursuing positional bargaining or win-lose outcomes.
  • Respectful Communication: Collaborative law fosters respectful and constructive communication between the parties, aiming to minimize conflict and preserve relationships.

What’s Included in a Mediation Agreement?

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1. The Parties to the Agreement

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2. The Purpose of the Agreement

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3. Parenting Arrangements

FCFCOA Matters

4. Schooling and Extra Curricular Activities for the Children

5. Child Support

6. Property Division

7. Spousal Support

8. Future Dispute Resolution Procedures

DFFH Matters

9. Modification and Termination

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10. Confidentiality

11. Governing Laws

12. Signatures

3. Arbitation: A Private Adjudication Process

Arbitration is an alternative to litigation where parties appoint an independent arbitrator who acts as a private judge to make a binding decision on their dispute. It offers the following advantages:

  • Flexibility: Parties have more control over the process, including choosing the arbitrator, deciding the timeline, and determining the rules that will govern the arbitration.
  • Expertise: Arbitrators are typically experienced family law practitioners or professionals with specialized knowledge in the specific subject matter of the dispute.
  • Confidentiality: Similar to mediation, arbitration proceedings can be kept private, allowing parties to maintain confidentiality and avoid the public scrutiny associated with court proceedings.
  • Finality: Arbitration results in a binding decision that is enforceable in court, providing a final resolution to the dispute without the need for further court involvement.

4. Family Dispute Resolution (FDR): Prioritising the Best Interests of Children

Family Dispute Resolution (FDR) is a mandatory process in Australia for parents who wish to resolve disputes related to parenting arrangements. FDR is governed by the Family Law Act 1975 and aims to protect and prioritize the best interests of the children involved. Key aspects of FDR include:

  • Family Dispute Resolution Practitioners (FDRPs): FDR is facilitated by FDRPs, who are trained professionals specializing in mediation and conflict resolution.
  • Child-Focused Approach: FDR encourages parents to consider the needs and best interests of their children when reaching parenting agreements.
  • Exemptions: Certain circumstances, such as family violence or urgent matters, may exempt parties from attending FDR before initiating court proceedings.
  • Issuing Section 60I Certificates: FDRPs issue Section 60I Certificates, which are required when applying to the court for parenting orders.
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5. Court-Based Litigation: Resolving Disputes through the Judicial System

Although alternative dispute resolution methods are encouraged, court-based litigation remains an option for family law disputes when other avenues have been exhausted. When parties are unable to reach an agreement through negotiation or alternative methods, they can turn to the courts for resolution. It is important to note that litigation can be time-consuming, costly, and may result in decisions being made by a judge who is less familiar with the specific circumstances of the case.

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Mediation Summary

Family law disputes can be emotionally challenging, but in Australia, there are various dispute resolution methods available to help parties navigate these complex issues. Mediation, collaborative law, arbitration, family dispute resolution, and court-based litigation each offer different benefits and approaches to achieving resolution. By prioritizing open communication, cooperation, and the best interests of all parties involved, families can find amicable solutions that promote healing, preserve relationships, and provide a solid foundation for the future. If you find yourself in a family law dispute, consider seeking advice from a qualified family lawyer who can guide you through the most suitable dispute resolution process for your specific situation.

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Your Alternative Dispute Resolution Team

Penny LaGreca
Partner | Principal Solicitor 

Penny is a leading family law solicitor admitted in the Supreme Court of Victoria. 

She has a broad range of expertise across multiple practice areas like family law, Wills and estate planning, and personal injuries, and is currently completing a Masters of Family Law. 

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Durra Baraz
Senior Solicitor
 

A mother of three, Durra Baraz is a highly experienced family law solicitor with a background in HR. 

She speaks fluent Arabic and often represents clients who aren’t native English speakers. 

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Ariane Ang
Solicitor 

Ariane Ang combines experience in criminal and commercial matters with a focus on family law. 

She primarily practices in matters involving property division, parenting arrangements, and intervention orders. 

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Teraseth James
Solicitor 

Teraseth James is a family law solicitor who focuses on achieving swift, equitable outcomes. 

She understands that family violence matters are incredibly emotional, and takes a practical, cost-effective approach to resolving disputes. 

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Expert Mediation and Family Dispute Resolution (FDR) advice from leading Melbourne lawyers. 

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