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Child Focused and Child Inclusive Mediation: What To Expect

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

6 common questions about mediation, answered

Mediation is when two conflicting parties in an argument come together with an impartial mediator, whose role is to impartially facilitate discussion and negotiation. The aim is to find a resolution for their dispute and avoid costly, lengthy and emotionally taxing litigation and Court proceedings.

Family Dispute Resolution (or FDR) is defined in section 10F Family Law Act 1975 as:

“A process (other than a judicial process) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process

A Family Dispute Resolution Practitioner (FDRP) is a mediator, accredited with the Attorney General Department after undergoing additional and specific training.

People looking at their options for mediation have lots of questions about what a mediator does and how the FDRP process works. Some of these questions are listed below.

 

  • Mediation vs divorce lawyer – What’s the difference?

Your lawyer is your advocate retained to represent your interests in a Family Law matter or Divorce proceeding. They work in your best interest to get you the best outcome possible. Your ex-partner’s Divorce lawyer will do the same for them. Lawyers are required in litigation before the Court which can be a consuming process, both emotionally and financially.

Mediation empowers separated couples to find an outcome themselves, with or without lawyers being involved. Discussions in mediation are ‘without prejudice’ and cannot be used as evidence in Court if an agreement isn’t reached.

Mediators provide a structure/process for discussions to occur. They address:

  • power imbalances between the opposing sides through interventions
  • assist the parties to better understand the interests and concerns of the other party
  • facilitate negotiation

Most importantly, the mediator is impartial while a Divorce Lawyer represents only one side in the dispute.

 

  • Are the mediation sessions confidential?

Divorce litigation, where the matter goes to court, are confidential and protected by confidentiality provisions in the Family Law Act 1975.

Mediation and FDR is also confidential, and the discussions are “without prejudice” which means the proceedings can’t be used in evidence. There are exceptions to confidentiality though, such as:

  • if a party makes threats to commit a criminal offense
  • information regarding commission of a crime comes to light
  • there’s information regarding risk to a child

The mediator or FDRP is required by the Regulations to report in the above circumstances.

 

  • I don’t feel safe, what should I do?

Mediation or FDR may not be appropriate if there’s family violence or other power imbalances that affect a party’s ability to participate effectively in the process.

Prior to mediation your mediator or FDRP will usually contact you with a series of questions as part of a screening process. The screening process will allow the mediator or FDRP to decide whether the mediation should proceed.

If there’s family violence but the mediator thinks mediation can proceed, the process can be conducted by way of ‘shuttle’ with the parties kept separately and the mediator acting as a go between.

 

  • What happens if we can’t agree?

Sometimes parties can’t resolve their differences with the assistance of mediation. Sometimes couples, despite their good intentions, just can’t agree. Hopefully some issues can be narrowed or better understood via the process and in parenting matters the Family Dispute Resolution Practitioner can issue a Section 60I Certificate allowing the parties to file in Court. The Certificate will indicate to the Court one of the following from the FDR:

  • The parties attended and made a genuine effort to resolve the dispute;
  • The parties attended but one or both did not make a genuine effort to resolve the dispute;
  • Mediation didn’t proceed because one party didn’t attend after being invited by the FDRP;
  • Mediation wasn’t appropriate.

 

  • But what happens when we do agree?

Depending on the dispute there are different potential outcomes if the parties agree.

For property settlement disputes, heads of agreement can be reached and signed which set out the basis for a Consent Order, or Binding Financial Agreement, to be produced.

In parenting disputes, a Parenting Plan will record the agreement which may or may not be made into a Consent Order at a later date. Whether there is a Consent Order, or the agreement remains as a Parenting Plan is a matter for the parties.

 

  • What will mediation do for me?

Mediation empowers the parties to make their own decisions. This tends to create a greater likelihood for satisfaction with respect to outcomes (particularly as an alternative to having a Judge impose an Order).

Experienced Family Lawyers will understand that very often neither party walks away satisfied from “having their day in Court”. Mediation can significantly reduce costs of litigation, the delays often experienced with the process and the animosity created by the opposing side.

Particularly in parenting matters where child focus is important, mediation can assist the parties to move away from entrenched positions. FDR allows them to closely explore each other’s interests and the best interests of the children in the dispute.

 

I once heard a Judge tell a mother and father, “I don’t know your children, or love your children – why do you want me to make these important decisions for them”.

 

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