Family Law Mediation

The different kinds of family law mediation

Mediation is a broad word, and in family law it covers several distinct processes. Knowing which one you are being offered matters, because they have different rules, different confidentiality protections, and different consequences.

 

Family dispute resolution is the formal process for parenting disputes, conducted by an accredited family dispute resolution practitioner. It is the process that produces a section 60I certificate, which you generally need before you can file a parenting application in court.

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Property mediation is not regulated in the same way. It can be run by a lawyer-mediator, a retired judge, or a private mediator, and it is usually voluntary although courts increasingly expect parties to have attempted it.

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A conciliation conference is mediation run by the court itself, usually a registrar, once proceedings are on foot.

 

Collaborative practice is a different model again, where both parties and their lawyers sign an agreement to resolve the matter without going to court.

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What actually happens on the day

Most mediations follow a similar shape. There is an intake stage where the mediator speaks with each person separately to check the matter is suitable and safe to mediate. Then there is a joint session, or in many cases a shuttle arrangement where the parties stay in separate rooms and the mediator moves between them. Shuttle mediation is common and is not a sign the process is failing.

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The mediator does not decide anything and does not give either of you legal advice. Their job is to help you negotiate. That is why coming with your own advice, and knowing your realistic range before you walk in, matters so much.

If agreement is reached, it should be written down that day. Heads of agreement signed at mediation can then be turned into consent orders or a binding financial agreement, which is what makes it enforceable.

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Confidentiality, and its limits

Family dispute resolution has strong statutory confidentiality and admissibility protections, which is what allows people to speak frankly. There are exceptions, including where there is a threat to a person's life or health, or a child is at risk of harm.

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Private property mediations are usually conducted on a without prejudice basis by agreement rather than by statute. The distinction matters and is worth understanding before you make an offer you would not want repeated.

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When mediation is not appropriate

Mediation is not suitable for everyone. Where there is family violence, a significant power imbalance, urgency, a risk that assets are being disposed of, or one party will not disclose their financial position, mediation can be unsafe or simply futile.

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In parenting matters, an accredited practitioner can issue a section 60I certificate confirming that family dispute resolution was not appropriate, and exceptions to the requirement also apply in cases of urgency, family violence and child abuse. Being honest about this at intake protects you.

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How we prepare clients for mediation

The single biggest predictor of a good mediation outcome is preparation. Before you attend we make sure disclosure is complete enough for you to negotiate on real numbers, we work out your realistic range and your walk-away point, we identify the non-negotiables, and we prepare the documents needed to lock in an agreement on the day.

We can attend with you, or prepare you to attend on your own where that is more appropriate and cost-effective.

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Frequently asked questions

Is mediation compulsory in family law?

For parenting matters, you generally need a section 60I certificate from an accredited family dispute resolution practitioner before you can file in court, so in practice it is close to compulsory. Exceptions apply in cases of urgency, family violence, child abuse, and where a party cannot participate effectively. Property mediation is usually voluntary, though courts expect genuine attempts to resolve.

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What is a section 60I certificate?

A certificate issued by an accredited family dispute resolution practitioner confirming what happened with mediation: that you attended and made a genuine effort, that the other party did not attend, or that the matter was not appropriate for mediation. You generally need one to file a parenting application, unless an exception applies.

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Does the mediator decide who is right?

No. A mediator has no power to decide anything and does not give legal advice to either party. They facilitate the negotiation. If you want someone to decide, that is arbitration or a court, not mediation.

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Is what I say at mediation confidential?

Family dispute resolution carries statutory confidentiality and restrictions on admissibility, with exceptions including threats to life or health and risk of harm to a child. Private property mediations are usually confidential by agreement rather than statute, so check the terms before you attend.

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Is mediation safe if there has been family violence?

Not always, and it should never be assumed. Practitioners screen for violence and power imbalance at intake, and can determine that mediation is not appropriate. Where mediation does proceed, shuttle arrangements, separate arrival times and legal representation can be used. Raise it at intake rather than on the day.

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Is an agreement reached at mediation binding?

Usually, not by itself but in some circumstances yes. An agreement or heads of agreement signed at mediation records what you agreed, but it usually needs to be converted into consent orders or a binding financial agreement to be enforceable. Do that promptly, while the agreement still holds.

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How much does family mediation cost?

It varies with the provider and the length of the session, and it is almost always a fraction of the cost of contested litigation. Community-based family dispute resolution services are available and are means-tested. We can advise on which option fits your matter.

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Talk to a Melbourne family mediation lawyer

Whether you are preparing for mediation or deciding whether it is right for your matter, book a free 30-minute phone assessment, call 1800 976 214, or see us in the Melbourne CBD, on St Kilda Road, in Dandenong or in Pakenham.