Family Dispute Resolution and Mediation

6 March 2022 in Family and Divorce Law

What is the Difference between a Family Dispute Resolution and Mediation?

Family Dispute Resolution (FDR) and mediation are technically two different things. FDR is a process outlined in Australian law (Part 11, Division 3 of the Family Law Act 1975) and mediation is a more informal way to resolve disputes. Mediation may come about from another family member, friend or may occur in the form of family counselling. FDR, on the other hand, focusses on resolving specific family disputes and focusses less on the emotional side of relationships.

Family Dispute Resolution

Family Dispute Resolution (FDR) is a broad term including negotiation through lawyers, collaborative practice, mediation, conciliation or arbitration. FDR should be completed by a registered Family Dispute Resolution Practitioner (FDRP) with the Commonwealth Attorney-General’s Department of the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM).

In general, the court expects families to only make an application to the court for a FDR when there are no other means of resolving the dispute. Alternative techniques for resolving family disputes prior to FDR include counselling, discussion, mediation and compromise.

FDR agreements conducted outside the court are not automatically binding and your FDRP must explain this to you. An FDR can be offered by the court with a judicial registrar who is authorised as an FDRP by the court. Agreements reached within a court based FDR can create binding court orders.

Importantly, those with a parenting dispute about matters that can be dealt with by an order under Part VII of the Family Law Act must make a genuine effort to resolve the dispute by FDR before filing a parenting application for a Part VII order to the court – section 601(9).

What happens during a FDR within court?

When one party engages an FDRP to resolve a family dispute, the practitioner invites the other party involved to a session. If the other party fails to attend, the FDRP may need to issue a certification for the initial party member to make an application to Family Court.

During the initial assessment, the FDRP decides whether FDR is suitable for this particular family dispute. Considerations include:

Family Violence and Safety
Equality of Bargaining Power
Risks to any Children involved
Participant’s emotional and psychological health

From there, the FDRP will explain their role in the process to help both parties clearly understand their expectations and potential outcomes available to them. The FDRP will also help to identify issues that need resolution and will encourage both parties to listen to the other’s position. Occasionally, it’s unsuitable to have both parties participating in the mediation to be in the same room. In that case, the FDRP will a “shuffle mediation” by going back and forth between different rooms to facilitate a successful mediation. Both parties get assistance in developing a parenting plain with clear, agreed upon arrangements for the children.

The FDRP is a third party, impartial party who can keep each participant on tracking provide workable solutions that are in the best interest of everyone, including the children involved. Your family lawyers can be present during FDR and represent and advocate for you.

When an FDR agreement is reached, the judicial registrar conducting the conference will make interim or final orders that reflect the agreement. These orders will take effect immediately.

Unsuccessful Family Dispute Resolution

In the case that an FDR is unsuccessful, an FDRP can issue a section 601 certificate to allow an application to be made to Family Court.

This type of certificate can also be issued if an FDR is inappropriate for the particular family situation. For instance, if there are concerns regarding family violence, safety concerns for one or both parties, risks to children or the inability of the parties to negotiate. A Section 601 certificate can address the following instances:

A necessary party did not attend
Both parties attended and made a genuine effort to resolve the dispute
Both parties attended but one or both did not make a genuine effort to resolve the dispute.
The FDRP decided that your case was not appropriate for FDR
The FDRP decided it was not appropriate to continue partway through the FDR process.

If an FDR agreement is not reached, your case will proceed to a court based hearing. At any stage before the final hearing, both parties can request a court based family dispute resolution conference, attend private mediation or community based FDR or reach an agreement privately and submit consent orders.

How can the BSM Lawyers Help me?

Our expert family lawyers have experience with family dispute resolution and mediation. In fact, 95% of our divorces are settled out of court, saving you legal expenses, time and further stress. The BSM Lawyers will be with you during FDR and represent and advocate for you. We recognise that this can be a very difficult time for you and we will be with you every step of the way.