Mediation and Dispute Resolution

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Mediation and Dispute Resolution Lawyers

Separation can create difficult decisions about children, property, finances and the future. When you and your former partner do not agree, going to court is not necessarily the first or only option. Mediation and dispute resolution can provide an opportunity to discuss the issues, explore practical solutions and work towards an agreement without having a judge determine the outcome.

In family law, dispute resolution can include negotiation, mediation, arbitration and Family Dispute Resolution (FDR). FDR is a type of mediation where an independent Family Dispute Resolution Practitioner helps separated families discuss their disagreements and try to reach an agreement. The practitioner does not take sides, make the decision for you, or provide legal advice.

For parenting disputes, Australian family law requires parents to make a genuine effort to resolve their disagreement through FDR before applying to the Federal Circuit and Family Court of Australia for parenting orders, although exceptions can apply.

Mediation may also help separating couples resolve property and financial matters without contested court proceedings. Even where every issue cannot be resolved, reaching agreement on some matters can narrow the dispute and make the next steps more manageable.

Before agreeing to arrangements affecting your children, property or finances, it is important to understand your legal position and the consequences of any proposed agreement. Carbone Lawyers can provide family law advice throughout the dispute resolution process and help you understand your options.

We act for clients throughout Victoria, not only in Melbourne, so wherever you are in the state we can help.

Considerations for Mediation and Dispute Resolution

Mediation can be used to address a range of issues following separation. Depending on your circumstances, this may include:

  • where children will live
  • how much time children will spend with each parent
  • arrangements for children to communicate with parents and other important people
  • responsibility for decisions about major long-term issues affecting children
  • division of property and other financial matters
  • practical arrangements following separation
  • specific issues that remain unresolved after earlier negotiations
  • spousal maintenance.

Every family is different. The right dispute resolution process will depend on the issues involved, the relationship between the parties and whether mediation is safe and appropriate in the circumstances.

Family Dispute Resolution (FDR) and parenting matters

When parents cannot agree about arrangements for their children, FDR can give them an opportunity to discuss their concerns and consider possible arrangements for the future.

For parenting applications, parties must make a genuine effort to resolve their dispute through FDR before applying to the Court. A Family Dispute Resolution Practitioner will issue a certificate following the FDR process, which is required before parenting proceedings can be commenced. Exceptions to the FDR requirement apply in some circumstances.

FDR is not about determining which parent is right or wrong. The practitioner is independent and assists both parties to communicate, identify the issues in dispute and explore whether an agreement can be reached.

A family lawyer can help you understand your legal position before mediation so you can participate in negotiations with a clearer understanding of your rights, responsibilities and options.

Mediation for property and financial disputes

Mediation can also be used to negotiate property and financial matters following separation.

Unlike the specific FDR requirement applying to most parenting applications, parties are not required to obtain an FDR certificate before commencing property proceedings. However, parties to financial proceedings are generally expected to make genuine efforts to resolve their dispute and comply with applicable pre-action procedures before commencing court proceedings.

Property and financial mediation may involve discussions about matters such as assets, liabilities and other financial issues arising from separation.

Parties to family law property and financial matters also have disclosure obligations. This means relevant financial information and documents need to be provided so that the parties can properly understand the financial circumstances involved in the dispute.

Obtaining legal advice before negotiating a property settlement can help you understand your position and the potential consequences of the terms being proposed.

If you reach an agreement at mediation

Reaching an agreement at mediation can avoid or reduce the need for contested court proceedings. However, it is important to consider how the agreement should be documented.

For parenting matters, parents may record an agreement in a parenting plan or apply to the Court for consent orders. A parenting plan is not legally enforceable in the same way as a parenting order.

Where parties reach agreement about parenting, property or financial matters, they may be able to apply for consent orders. If made by the Court, consent orders are legally binding.

Before signing or finalising an agreement, consider obtaining independent legal advice. A family lawyer can explain what the proposed terms mean, identify issues that may require further consideration and advise you about an appropriate way to formalise the agreement.

If mediation does not resolve the dispute

Not every mediation results in a complete agreement. You might resolve some issues while remaining apart on others, or you may not reach an agreement at all.

An unsuccessful mediation does not necessarily mean negotiations must end. Depending on the circumstances, further negotiation or another dispute resolution process may be appropriate.

If the dispute cannot be resolved and the applicable pre-filing requirements have been met, court proceedings may become necessary. Even after proceedings have started, there can still be opportunities for the parties to negotiate and resolve some or all of the dispute before a final hearing.

Suitability for your family

Whether mediation or FDR is appropriate will depend on the circumstances of the family.

Safety is particularly important. Exceptions to the requirement to participate in FDR before commencing parenting proceedings can apply in certain circumstances. If you have concerns about whether mediation is safe or appropriate for you or your children, those concerns should be raised with your lawyer and the relevant dispute resolution practitioner.

You should obtain legal advice about the options available in your particular circumstances rather than assuming that mediation is required or appropriate.

How Carbone Lawyers Can Help

Family disputes can be stressful and emotionally demanding, particularly when you are trying to make important decisions about your children, property, finances and future at the same time. You do not have to navigate those decisions without legal guidance.

Carbone Lawyers can assist with family law matters and help you understand your options before, during and after mediation or another dispute resolution process.

Depending on your circumstances, our family lawyers can help you:

  • understand your legal rights and responsibilities
  • identify the issues that need to be resolved
  • prepare for negotiations or mediation
  • understand proposed settlement terms before you agree to them
  • consider how an agreement should be documented
  • prepare or review proposed consent orders where appropriate
  • understand your options if negotiations are unsuccessful
  • navigate court proceedings if the dispute cannot be resolved outside court.

The aim is to help you make informed decisions with a clear understanding of what a proposed agreement may mean for you and your family.

If you are separating, preparing for mediation or having difficulty reaching an agreement with your former partner, speak with us about your options. Don’t settle for less when it comes to understanding your legal rights and making informed decisions about your future.

FAQs on Mediation and Dispute Resolution

What is mediation in family law?
Mediation is a form of dispute resolution where an independent person helps parties discuss the issues between them and try to reach an agreement. Family Dispute Resolution is a specialised form of mediation commonly used to help separated families resolve parenting disputes. The mediator facilitates the discussion but does not decide the dispute or provide legal advice.
For most parenting disputes, parties are required to make a genuine effort to resolve their disagreement through Family Dispute Resolution before applying for parenting orders. Exceptions can apply, so it is important to obtain advice about the requirements relevant to your circumstances. Property and financial proceedings have different requirements. An FDR certificate is not required before commencing property proceedings, although parties are expected to make genuine efforts to resolve their dispute and comply with applicable pre-action procedures.
A Family Dispute Resolution Practitioner can issue a certificate in connection with the FDR process. For parenting matters, a certificate is required before you can commence proceedings in the Federal Circuit and Family Court of Australia, unless an exception applies. The type of certificate issued depends on what occurred during the FDR process. If you are unsure what a certificate means for your circumstances, seek legal advice before taking the next step.
A mediator or FDR practitioner does not act as your lawyer or provide you with independent legal advice. Obtaining advice from a family lawyer before mediation can help you understand your legal position, prepare for negotiations and assess proposed terms before you agree to them. Whether a lawyer attends the mediation itself will depend on the type of mediation and the circumstances.
Dispute resolution can be used for both parenting and property or financial disputes. However, different legal requirements can apply to each type of matter. A family lawyer can help identify the issues that need to be resolved and advise you about an appropriate dispute resolution process for your circumstances.
It depends on how the agreement is documented. For parenting matters, an agreement may be recorded in a parenting plan or the parties may seek consent orders. A parenting plan is not legally enforceable in the same way as a parenting order. Parties who reach agreement about parenting, property or financial matters may be able to apply for consent orders. Consent orders become legally binding if made by the Court. Before finalising an agreement, obtain legal advice about the most appropriate way to document it.
A partial agreement can still be useful. Resolving some issues may narrow the dispute and allow the parties to focus on the matters that remain unresolved. Further negotiation or dispute resolution may then be possible. If the remaining issues cannot be resolved, court proceedings may ultimately be required.
The next step will depend on the type of dispute and your circumstances. For parenting matters, FDR is a pre-filing requirement unless an exception applies. If the other party does not participate, a Family Dispute Resolution Practitioner will be able to issue an appropriate certificate. You should obtain legal advice about the effect of the certificate and the options available to you.
Yes. Starting court proceedings does not prevent further negotiations or dispute resolution. Parties still have opportunities to resolve some or all of their disputes before a final hearing. If an agreement is reached during proceedings, legal advice can help ensure that the resolution is documented appropriately.
A mediator or Family Dispute Resolution Practitioner is independent and facilitates discussions between the parties. They do not represent either person, decide who should succeed or provide independent legal advice. A family lawyer represents and advises their client. They can explain your legal rights and responsibilities, help you prepare for negotiations and advise you about the consequences of a proposed agreement.