During court proceedings it is generally required to attempt Alternative Dispute Resolution prior to any final hearing. In children’s matter is it a requirement prior to commencing proceedings, except in extenuating circumstances (danger, urgency etc).
A mediator who is also a Family Dispute Resolution Practitioner has the ability to issue a Section 60i Certificate, the document required to commence court proceedings relating to children. The purpose of the certificate is to push the parties to talk to each other and resolve their issues without recourse to litigation, which is stressful, costly to the parties, costly on the public and can be a long and drawn out process.
Section 60i of the Family Law Act 1975 (Cth) sets out the requirements and also the grounds that the certificates are issued. The various grounds for which a 60i Certificate may be issued include:-
- The other party refused or failed to attend mediation;
- The practitioner deemed mediation inappropriate;
- The parties attended mediation and made a genuine effort;
- The parties attended mediation but one or more party did not make a genuine effort; and
- Mediation commenced however part way through the practitioner deemed it not appropriate to continue.
The process of mediation is that the parties will undertake what is called intake, this involves the mediator getting to understand the issues in dispute as well as the parties and to allow the mediator to assess whether it is appropriate to mediate. The actual mediation may occur face to face, by telephone or even shuttle (where the mediator takes messages from one party to the other). You may elect to have legal representation at the mediation or alternatively, you may attend by yourself. It is meant to be a therapeutic process to allow the parties to feel heard as well as to assist the other in understanding their position. The process may take several hours, and involves talking about the issues and what is required to move forward along with negotiating positions.
Some conflict is good and, as long as the communication is not derogatory or causing harm, we will often let the parties get a little bit heated in the communication. Our role is not to communicate for you but to assist you to communicate between yourselves. Sometimes that communication occurs through us as the mediator however we do try to have the parties directly talk to each other.
At the end of the Mediation, if resolved, an agreement can be drawn up and signed between the parties. One of the great benefits of mediation is it allows you to be in charge of the resolution and further, you can often resolve the issues in one day without a need to continue to take time off from work to attend appointments and court which can also be costly.