My relationship with my ex is so bad I can't see how mediation will be successful.
You can do mediation separately, so if you and your ex cannot be in the same room together, mediation can accommodate this. The mediator will go back and forth between the parties and work on an agreement until it gets done. Also, keep in mind that mediators do this for a living and are skilled at dealing with couples that fight. Mediators will stress the importance of putting aside personal issues for the child's sake and are very good at redirecting a parent's focus back to the topic that matters - the child.
Are things said during mediation confidential?
Yes, everything you say during mediation is confidential and cannot be used in court. Confidentiality is only waived when matters of a serious or criminal nature arise.
Is family dispute resolution compulsory?
Yes, suppose you intend to apply to a family law court for a parenting order. In that case, you must have a certificate from a Family Dispute Resolution Practitioner that states that you have made a genuine effort to try and resolve your disagreements through mediation. The requirement to participate in mediation applies to new applications and applications seeking changes to an existing parenting order.
The exceptions are:
The court can be satisfied that there:
Has been or is a risk of child abuse
Has been or is a risk of family violence
You are responding to another person's (such as your ex-partner's) application for parenting orders
Your application is about contravention of a parenting order that was made less than 12 months ago, and the behaviour of the other party shows a serious disregard for those orders
Your case is so urgent that you should not need to attend FDR and get an FDR Certificate
You are unable to participate effectively in FDR, for example, because you live in a remote area or you are incapable of participating in FDR for some other reason, such as where an interpreter is needed, and there are none available
What about my legal representation and advice?
You can get legal advice at any step during the mediation process over the phone or on breaks, and sometimes lawyers may be allowed into the room if the mediator determines it is appropriate. Your mediator will talk to both parties in advance about lawyers being present.
How long are the sessions?
Please ensure that you allow yourself enough time for each session. Intake sessions take up to an hour and each mediation session is booked for a two hour block. Make sure you allow enough time to park, and prepare for the meeting.
How can I be assured the process is fair?
Either party can stop the mediation process at any time; mediation will only go ahead if both of you want it. Mediators are impartial. The mediator does not take sides and is always there for both of you. Mediators don't give advice, although they share information about legal principles and explain some of the things you should be thinking about. The mediator doesn't ever make any decisions for you; you work out between you what proposals you think you would like to take to lawyers so that you can get advice and help before deciding to turn your proposals into a legally binding agreement.
What happens if I change my mind after mediation?
Nothing you do or say during mediation will create a legally binding agreement. At the end of the mediation process, your mediator will explain how to turn your ideas into a legally binding agreement or a court order, which usually includes getting legal advice.
What sort if thing will I be expected to do?
After signing the agreement to mediate, both of you will work with the mediator to:
Explain your family situation.
Set the mediation agenda. The mediation sessions are tailored around what you want and need to discuss.
Agree on the issues that you need to discuss.
Decide the priority of the issues. Some issues are more pressing than others and need to be resolved first, e.g., short-term financial support, holidays, contact.
Set time scales to deal with certain matters, e.g., for separation or divorce.
Clarify the issues: sometimes, it is not certain what matters are really in dispute, and clarifying these avoids future misunderstanding.
Consider whether any other specialists might be able to help you.
Find common ground.
Provide/obtain information, e.g., complete a financial questionnaire or have a form explained to you. If you have economic issues to discuss, it is imperative to make sure everyone has a detailed picture of the family's financial situation. This involves each of you providing details about any property you own, and your income and expenditure, very much as you have to if you go to court.
Look at the various options and reality test those options. When there are financial issues, you will need to consider what everyone in the family needs, especially the children.
Arrive at the option that best suits both of you and work out the details of your proposals.