What is family dispute resolution and mediation style conferences in family law?
This post is about family dispute resolution and mediation style conferences and the differences between.
They are both types of mediation. But there are some important differences.
There seems to be some confusion about those differences, which is why I’m doing this post.
We refer to Family dispute resolution as “FDR”.
The Family Law Act 1975 introduced FDR in 2008.
The Family Court of Western Australia introduced mediation style conferences by practice direction and rules more recently.
Who does FDR and mediation style conferences?
The family dispute resolution practitioners conduct FDR.
FDR practitioners are trained and registered, but they don’t have to be a legal practitioner.
Mediation style conferences on the other hand are undertaken by either an experienced barrister or solicitor or a retired judge.
This is an important distinction between FDR and mediation style conferences.
Must you have a family lawyer?
Another important difference, is that FDR is generally undertaken without lawyers present
The parties themselves attend the FDR practitioner to undertake the FDR. You do not need a lawyer to be present.
In fact the whole point of the FDR was to give the parties an opportunity to resolve their matters without lawyers.
Of course, by request, FDR can also be undertaken with lawyers present.
This is an important difference, because mediation style conferences are undertaken with lawyers present.
You can’t have a mediation style conference without both parties being represented by their lawyers. Having the parties’ lawyers present is an important part of the process of having a mediation style conference.
Must I attend family dispute resolution?
Both types of mediation can deal with children and financial issues.
However, the important difference is that FDR is compulsory in relation to children’s issues only. Whereas mediation style conferences are compulsory in a sense in relation to financial issues only.
What I mean by compulsory in relation to FDR is that, if you intend file proceedings in the Family Court of Western Australia in relation to children, then you must have undertaken FDR.
When you file your court application, you must file a FDR certificate provided by the FDR practitioner that says that, you have completed family dispute resolution.
If you don’t file the FDR certificate with your court application, then the Court will will reject the documents for filing.
There are some limited exceptions to the requirement to undertake FDR. If you come under one of those exemptions, then you can file an FDR exemption form. But, the Court takes the FDR very seriously and it will scrutinise the FDR exemption very carefully.
If the Court is not satisfied, then the Court will reject the application.
Must I attend a mediation style conference?
Mediation style conferences, on the other hand, are compulsory in a different sense. You can still file an application for financial matters without having undertaken a mediation style conference. The case will then be programmed to the first return to date which is usually the procedural hearing.
At the procedural hearing, the Court will ask the parties when they attended a mediation style conference.
The Court may then adjourn the case for the parties to a attend a mediation style conference.
So, in a sense it is compulsory. The Court may adjourn the case, if the parties haven’t completed a mediation style conference.
The parties will have incurred the legal costs of commencing court proceedings. The Court has adjourned the case, for the parties to subsequently attend a mediation style conference.
If the Court thinks the case is not suitable for a mediation style conference, then the Court may program the case to a conciliation conference. In those cases, mediation style conferences are not compulsory.
The are a number of factors. Both of the parties must have lawyers to attend a mediation style conference.
How successful are FDR and mediation style conferences?
In terms of the success rates of FDR and mediation style conferences, there are no statistics available presently that I’m aware of.
The quality of the family dispute practitioner will largely determine the success of FDR. The quality of the mediator that the parties obtain in relation to mediation style conference.
It’s very important that you select the correct mediator, so that you get the best chance of reaching a resolution of case.
So, if you’re thinking about mediation, if you’re thinking about going to FDR, if you think you come under one of the exemptions, or if you contemplating attending a mediation or mediation style conference, it is very important that you get expert family law advice.
So that you understand your options and that you put yourself in the best possible position to reach an agreement with the other party.
