You have separated, but is mediation recommended? You’re not sure if mediation is the right step for you. Renee Toy of Listen Talk Resolve looks at situations where mediation might…
When is mediation not recommended?

You have separated, but is mediation recommended? You’re not sure if mediation is the right step for you. Renee Toy of Listen Talk Resolve looks at situations where mediation might be the right step.

When is mediation recommended?

Separated couples are encouraged to use family mediation (called family dispute resolution or FDR) rather than going to Court. FDR is an ‘alternative dispute resolution’ process. In FDR, people are encouraged to work towards agreements about parenting issues, financial and property matters, or child support issues.

Under Australian family law, separated parents MUST attempt family dispute resolution before seeking orders in a family law court. There are exceptions to this rule. Situations where family dispute resolution may NOT be required include:

  • where there is a history of or current family violence or child abuse (see further discussion about this below);
  • where a party cannot participate effectively (for example due to location or incapacity); or
  • matters involving urgent issues.

In financial matters, people must make a genuine effort to resolve their matter before filing a Court application. People can attempt to resolve their matter through family dispute resolution, or by using other dispute resolution options such as negotiating through lawyers.

What is the mediator’s role in recommending mediation?

A family dispute resolution (FDR) practitioner is a mediator specially trained to work with families following separation. They are an independent third party who does not take anyone’s side in the dispute.

FDR aims to provides a safe space where people can discuss and clarify issues. An FDR practitioner must decide if a matter is suitable for mediation, before a mediation proceeds. They have to consider issues such as family violence, safety, the balance of power between the parties (bargaining power), the emotional and psychological health of participants and any other issues that might make FDR unsuitable.

What if there is a history of family violence?

If family violence is a factor, an FDR practitioner may consider that family dispute resolution is not appropriate or suitable. If this happens, the FDR practitioner may issue a certificate pursuant to section 60I of the Family Law Act. This certificate shows the Court that FDR was attempted before a Court application was made.

It is important to note that FDR can still be suitable where there are complex issues such as child safety, drug/alcohol issues or family violence. In many cases, FDR can offer vulnerable persons or victim survivors a safe way to express their views and discuss issues, without the need to go to Court. FDR practitioners are specially trained to work with families in these circumstances. Parties can be based in separate rooms and the FDR practitioner ‘shuttles’ between the two rooms. Another option is an online mediation, where people can participate from the security of their own home. Other ways to create a safe space include mediating with lawyers or support persons present. Participants can seek other supports to assist them throughout the mediation process, such as mental health professionals, or divorce/conflict coaches. FDR practitioners may also recommend people seek legal advice from a lawyer along the way.

To find out whether mediation or FDR might be the right process for you, you can contact Renee Toy at Listen Talk Resolve here.