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, 2008:46; McIntosh 2007:4)
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.
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:
- Mediator opens the proceedings and explains the rules;
- Receive opening statements from the parties. Both sides should speak uninterrupted;
- The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
- Both sides engage to explore the topics in the agenda;
- The mediator identifies options and obstacles;
- The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
- Negotiation between the parties;
- If an agreement is reached, it’s put on record.
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.