Respectful Mediation  Port Macquarie

It is a structured negotiation process in which an independent person, known as the mediator, assists the parties to identify and assess options and negotiate an agreement to resolve the dispute. It is an alternative to a judicial officer imposing a decision on the parties.

From the NSW College of Law.

What is 3.2 the Facilitative Mediation Model?
The Evaluative Mediation Model is very similar to the Facilitative Mediation Model; however, the Mediator will be a solicitor experienced in Family Law Property and will provide guidance and assistance regarding fair and appropriate steps and outcomes, and likely outcomes of judicially determined. It is called the Evaluative Model because the Mediator provides some value assessments during the process. Parties almost always find it very helpful to have independent guidance in property matters.

A parenting plan is not legally enforceable. 

A Heads of Agreement for property signed by the parties is enforceable at law according to the case law.

Consent Orders for parenting and/or property become legally enforceable when sealed by a Court. 

A Binding Financial Agreement signed off by two solicitors is enforceable.  

A Binding Financial Agreement or sealed Consent Property Orders are necessary for superannuation splitting or transferring property without paying stamp duty.

A Heads of Agreement can be translated into consent orders. We draft Heads of Agreements in legal terms to make them easily transferable.

Mediation is a voluntary process. If a participant becomes upset, confused, or needs further advice, they can temporarily suspend or end the Mediation.

Often parties request a break or a private session with the mediator. There are times when the mediator wants a break.

We recommend obtaining legal advice. Free legal advice is available from the Legal Aid Advice Line in each State and Territory of Australia. And from Community Legal Centres, as well as from private lawyers.

We welcome the assistance of lawyers. That is generally of much greater assistance to the participants than “pub talk” or advice from “friends and family”. Sometimes people who do not have any “skin in the game” or who are just plain angry from their own fight do not give the best advice, notwithstanding they have the friend’s best interests at heart.

Mediation can still proceed even if there is a protection order in place, such as a Protection Order or Apprehended Domestic Violence Order or Apprehended Personal Violence Order, depending upon the jurisdiction in which it has been made, provided mediation is not prohibited by the order.

It is necessary for us to be provided with a copy of the Protection Order before we can proceed.

If the order says there is to be no communication between the protected person and the defendant except through a legal representative, then mediation cannot proceed.
Most orders allow mediation. If not, an application can be made to the originating court for a variation to allow for mediation.

If there is a Protection Order in place, then we will normally conduct the mediation via shuttle so that the participants do not speak directly to each other. And there can be no accusations of misconduct by either participant.

The sole purpose of the certificate is to allow people to file an application at court if one participant refuses to participate in mediation or if the mediation is unsuccessful.
Court may award costs against a party on the basis of failure to attend mediation or not making a genuine effort.

The certificate cannot be amended, and there are no comments added by the issuer.
Mediators are not required to provide the court with any additional information, including the reasons for their decisions about the issue of the certificate.

There are five types of Section 60I certificates that the mediator can issue:

(a) _______________________ (party or parties) did not attend family dispute resolution with me and the other party or parties to the proceedings but that person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend.

(b) _______________________ (party or parties) did not attend family dispute resolution with me and the other party or parties to the proceedings because I consider, having regard to the matters mentioned in sub regulation 25 (2), that it would not be appropriate to conduct the proposed family dispute resolution.

(c) _______________________ (parties) attended family dispute resolution with me and all attendees made a genuine effort to resolve the issue or issues in dispute.

(d) _______________________ (party or parties) attended family dispute resolution with me and the other party or parties to the proceedings but _______________________ (party or parties) did not make a genuine effort to resolve the issue or issues in dispute.

(e) _______________________ (party or parties) began attending family dispute resolution with me and the other party or parties to the proceedings but I consider, having regard to the matters mentioned in sub regulation 25 (2), that it would not be appropriate to continue the family dispute resolution.

Only Family Dispute Resolution Practitioners accredited by the Attorney General can issue 60I certificates.

For parenting matters, the children are always the primary focus. Mediation is far less costly, less stressful and much quicker than going through the court process. At mediation, you are able to discuss your issues and concerns in a safe, neutral and confidential setting. You have control over the agreements that are reached, affecting you and your children. 

The parents work together to reach a consensus. The long-term compliance and co-parenting are dramatically greater than court-imposed decisions. The long-term outcomes for the children are dramatically improved. The biggest single negative impact on children of separated parents is caused by the level of conflict between the parents. The mediator will follow the facilitative model of mediation for parenting matters.

For property matters, where there are children, the children remain focal in the negotiations and decisions. The mediator will follow the four-step process of:

Identifying the assets and liabilities and financial …

Identifying the contributions (financial and non-financial, including parenting and homemaker contributions) at the various stages (at all before the date the cohabitation commenced, during the period of the cohabitation, and between separation and the date of the mediation). There will be more on this in another answer to a frequently asked question; see below. The mediator will follow the evaluative model of mediation for property matters.

It is a written agreement that sets out the arrangements for co-parenting the children. We can provide you with a sample parenting plan, as well as sample parenting orders and property orders.

Parenting plans are not enforceable by law; however, the Family Law Act at sections 63C, 64D, 65 DA and 70NBB recognise parenting plans. If there is a dispute at court, the court will take note of a previous parenting plan. A parenting plan also has the ability to be set aside. If there is a parenting plan in place, then there is no need for any court intervention.

If you reach agreement and want it legally enforceable, then you can complete an Application for Consent Orders and a Form of Order, and lodge them in-line with the Federal Circuit and Family Court of Australia. There is a filing fee of about $165. You do not need solicitors, but it is a good idea for an experienced solicitor to draft the documents to get them correct. A Judicial Registrar considers the orders in Chambers (in their office) and issues the orders.

Yes, 100%. The participants, any participating lawyers and the mediator will all sign a confidentiality agreement.

All discussions within the mediation are strictly inadmissible at court, with the exception of an obligation to report serious child abuse or threats of child abuse or threats of harm to another participant.

If the other party refuses, then you will be notified and the mediator can issue a 60I certificate. The certificate will state that the other party refused to attend mediation. The complying party may request costs.

The court will almost always order the parties to attend mediation, unless there are good reasons not to, such as serious family violence.

Obtain legal advice. Obtain other professional advice, such as from financial advisors if appropriate.

You should consider:

• What are your concerns and issues?
• What concerns and issues do you think the other participant is likely to express?
• What are the facts and the sources of conflict?
• What is important to you to achieve?
• What do you think the other participant wants to achieve?
• What is the best way to communicate this information to the mediator and to the other participant?
• Have you considered several options and scenarios for resolution?
• How do my proposals support the best interests of our child or children?
• How is the current conflict between us impacting on our child or children?
• How can the communication between us be improved?
• What are my options if no agreement is reached?
• Have you considered an offer of resolution?
• Have you considered your best alternative and worst alternative to a negotiated agreement if the matter proceeds to court?
• Have you considered the financial and personal costs?
• Have you considered the possibility of a costs order against you?

There can be “goodwill agreements” which are not written. There can be parenting plans or Heads of Agreement or Consent Orders or Binding Financial Agreements. We can help draft each of these.

It will be private and confidential. Nothing volunteered by you can be shared with the other participant unless you specifically consent. During this time, the mediator will ask you a number of questions and assess the safety and suitability for mediation.

Almost all matters are suitable for mediation. It will also help determine the best way to proceed with the mediation, and identify the presenting issues and concerns.

a. The matter is urgent. E.g., one parent is withholding a child or children from the other parent.

b. The matter involves allegations of child abuse or family violence.

c. A delay in commencing court proceedings would create a risk of child abuse or family violence.

d. It is impractical for the parties to attend FDR. E.g., one party cannot be contacted.

e. A party is not able to participate in the process due to health issues including mental health issues.

f. The issue in dispute is a beach of an existing order in the last 12 months

Generally, a minimum of a couple of hours, but usually about four hours, including the intake assessments for a parenting or property matter. If it is done by shuttle, it will take longer. 

If it is a multi-party mediation or a translator is needed, it will take longer.

If it is parenting and property, it will generally take a whole day.

The mediator, the participants, their solicitors, the independent children’s lawyer if there is one. An interpreter may attend if one is required.

A participant can have a support person, but only with the consent of everyone. A support person may be required to leave the mediation if the Family Dispute Resolution Practitioner forms the view that the presence is not assisting.

Children are never permitted to attend FDR conferences.