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The pitfalls of choosing the wrong mediator for your parenting matter



Negotiating parenting arrangements is stressful enough without finding out that you engaged the wrong mediator!

You may be referred to a “mediator” or you might find a mediator yourself who is willing to facilitate your parenting mediation. You may inadvertently choose the wrong type of mediator who is NOT qualified to provide you with a s60i certificate if you don’t reach agreement in mediation.


If you don’t agree on parenting arrangements and find out your mediator is not qualified to issue a s60i certificate you will need to engage the right mediator to re-do your mediation to obtain the s60i certificate to enable you to initiate a court application.


This is not only costly financially duplicating mediation costs, but it is also costly emotionally to have to do mediation all over again!


So, if you need to do parenting mediation, you need to ensure you engage the right type of mediator…… a Family Dispute Resolution Practitioner.


There are different qualified mediators for family law matters such as parenting or property matters. A NMAS mediator can do family law property matters, workplace disputes, neighbourhood disputes, etc but due to not being accredited for Family Dispute Resolution they should ensure they co-mediate with a Family Dispute Resolution Practitioner for parenting matters or advise clients that they do not have the qualification to provide them with a s60i certificate if they do not reach agreement and wish to initiate court proceedings.


A Family Dispute Resolution Practitioner (FDRP) has received the required qualifications and has been accredited by the Attorney General’s department to perform family law parenting and property mediations. To find out if a mediator is accredited to perform your parenting mediation go to the FDRP register to ensure they are qualified.


Their training specifically provides knowledge to perform risk assessments for domestic violence and mental health to ensure mediation is appropriate. If assessed as appropriate the FDRP adjusts the mediation forum to create a safe space to moderate power imbalances, intimidation or enable a party who may feel their voice won’t be heard by a dominating party. The FDRP will enable shuttle mediation, so clients don’t need to see or hear the other party with the mediator going between the separate virtual or physical rooms to facilitate negotiation. 


The vulnerable party can request a support person or their lawyer to be present during mediation to support them. The party speaks for themselves but can have private session with either a support person or lawyer to gain support or advice. The support person should not be anyone who is emotionally involved in the dispute such as a new partner or parent unless the mediation is a shuttle forum.


The mediation is child focused on the best interests of the child to reality test options and solutions for your parenting arrangements. The mediation is confidential, so it is a safe space to negotiate. Anything discussed in mediation is not admissible in court so if you have been proposing different options during mediation and agree on some issues but not others this will not be allowed to be used in court that you agreed to something then reneged. You and your ex are prohibited from discussing meditation negotiations with anyone outside of mediation or on social media. The mediation is not recorded by the mediator and you as the client are not permitted to record the session either. All attendees in mediation will sign an agreement to participate to adhere to confidentiality. 


The Family Dispute Resolution Practitioner (FDRP) can issue a s60i certificate based on -

  • the parties do not reach agreement about parenting arrangements in their mediation and

want to initiate court proceedings or

  • the FDRP assesses mediation is not appropriate

  • a client has refused to attend mediation or

  • the FDRP has attempted to contact the other party twice to invite them to mediation but

didn’t respond

The court may award a costs order against the party that refuses to attend mediation as it is a pre-action to court proceedings. A full list of s60i certificates can be found here


The FDRP must also provide clients with a complaints process as there are stringent regulations and obligations that the FDRP mediator needs to adhere to. A full description of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 can be found here (Part 7 – Family Dispute Resolution Practitioners)


Don’t get caught out by not having the ‘right’ mediator for your parenting matter as it can be very

costly, stressful, and adversarial. Your family deserves to have the best chance at agreeing parenting arrangements that are in the best interests of your children.

 

Author – Cheryl Duffy, Divorce Conflict Coach, Family Dispute Resolution Practitioner, NMAS

Mediator, Parenting Coordinator


 

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