What is the difference between mediation and family dispute resolution?
Mediation refers to a process of talking through disputed issues with a neutral third party. Comparatively, family dispute resolution, also known as FDR, is a specific type of mediation that is covered under the Family Law Act 1975.
Whilst mediation is a process that can be undertaken between any two disputing parties, FDR is a process undertaken by disputing family members. This means that FDR generally deals with family disputes such as property settlement issues or issues regarding the care of children.
What is mediation?
Generally, the term ‘mediation’ is used widely and can refer to an informal discussion between family or friends with a third party present. However, when the term mediation is used in law, it is used to refer to a formal process in which the disputing parties talk through their issues with a professional mediator. It is a form of alternative dispute resolution.
The purpose of mediation is to solve the dispute before it reaches arbitration or requires court intervention. This is because court intervention takes a large amount of time and is also costly. Other benefits of mediation include:
- Mediation can often better preserve the relationship between the two disputing parties.
- Upholds privacy and confidentiality of parties.
- Parties can present their side of the argument and be heard by the other party.
- Stronger focus on discussion and understanding one another.
- Can result in more creative solutions that better satisfy both parties
- Mediation can be implemented prior to, or in conjunction with other dispute resolution processes.
Because of the many benefits of mediation over court intervention, there are some circumstances where the law requires that parties be subject to mandatory mediation sessions. In some circumstances, this means that parties must undertake compulsory family dispute resolution.
What is Family Dispute Resolution (FDR)?
Generally, with disputes regarding parenting matters, FDR is compulsory before any application to the Court can be filed. This reflects the expectation that family members will attempt to resolve disputes by themselves, through compromise and negotiation.
For example, the law requires that before disputing parties can have a parenting dispute dealt with by way of court order, they must first make a genuine attempt to resolve the issue through FDR. This must be done before an individual makes a parenting application to the Court.
There are, however, certain exceptions to this rule. A person will not have to engage in compulsory FDR in circumstances where:
- Domestic violence is an issue in the family
- An individual is responding to an application in court
- The matter is extremely urgent
- A party to the dispute is unable to participate effectively in the FDR process (e.g. because of an incapacity or because they live extremely far away)
- A party to the dispute has shown serious disregard for a court order that has been made in the last 12 months.
How does the FDR process work?
FDR is a process by which a Family Dispute Resolution Practitioner acts as an independent third party and helps disputing family members resolve their issue. Common issues include disputes regarding property settlement or parenting arrangements. Normally such issues arise during the separation or divorce process.
It is important to note that FDR practitioners are trained in helping people resolve disputes but cannot themselves give legal advice. It is also notable that an FDR practitioner cannot impose a decision on disputing parties.
It is important to check that the person engaged as an FDR Practitioner is actually registered with the Commonwealth Attorney-General’s Department. The Attorney-General’s Department also has a register which notes the fees associated with FDR processes. Fees are calculated on a sliding scale basis, meaning that those with a higher gross income will usually pay more than those with a lower income.
If you need any assistance regarding family dispute resolution or mediation for your family please feel free to reach us via the contact form.
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