A Guide to Mediation and Alternative Dispute Resolution in Family Law

At a Glance

Mediation is often a mandatory first step before applying to the Federal Circuit and Family Court of Australia
Alternative Dispute Resolution (ADR) includes various methods such as negotiation, mediation, and arbitration
These processes prioritise the best interests of the children and equitable property division
Success in ADR can save significant time, money, and emotional distress
Legal representation during mediation ensures your rights are protected while seeking a compromise

Understanding ADR in the Australian Family Law System

In Australia, the Family Law Act 1975 (Cth) places a heavy emphasis on resolving disputes outside of the courtroom. Alternative Dispute Resolution, or Family Dispute Resolution (FDR), is a process where an independent, neutral third party helps separating couples discuss their issues and reach an agreement.

Except in limited circumstances: such as cases involving family violence or urgency: parties are generally required to make a genuine effort to resolve parenting disputes through FDR before they can file an application for court orders. If successful, this process results in a Section 60I certificate, which is necessary for court entry if no agreement is reached.

Common Methods of Alternative Dispute Resolution

Family Dispute Resolution (Mediation)

Mediation is the most common form of ADR. A trained mediator facilitates a conversation between the parties. The mediator does not make the decision for you: rather, they assist you in identifying the issues and exploring potential solutions.

This is particularly effective for:

establishing "week-about" or specific parenting schedules;
deciding how holidays and special occasions will be split; and
reaching an initial agreement on the division of household assets.

Arbitration

Arbitration is more formal than mediation but less adversarial than court. In this process, the parties agree to appoint an arbitrator who will hear both sides and make a binding decision. In Australia, arbitration is currently limited to financial and property matters and cannot be used for parenting orders. It is often faster than waiting for a court date and allows parties to choose an expert in family law to decide their case.

Collaborative Law

In collaborative law, both parties and their respective lawyers sign a contract committing to resolving the dispute without going to court. If the process breaks down and one party decides to litigate, both lawyers must withdraw, and the parties must find new representation. This creates a strong incentive for everyone to stay at the table and negotiate in good faith.

The Role of the "Best Interests of the Child"

In any Alternative Dispute Resolution (ADR) process involving children, the paramount consideration is the “best interests of the child.” This principle is the cornerstone of Australian family law. Practitioners assess the benefits of the child maintaining a meaningful relationship with both parents, alongside the need to protect the child from physical or psychological harm.

In U v U [2002], the High Court of Australia affirmed that in determining applications involving international relocation of a child, the court must regard the child’s best interests as the paramount consideration. This requires a case-by-case evaluation of the proposed arrangements and their impact on the child’s wellbeing and parental relationships, rather than giving precedence to the preferences of either parent.

Practical Case Example: The Power of Mediation

Consider a case where two parents were locked in a dispute over a primary school enrolment. One parent wanted a private religious school, while the other insisted on the local public school. Litigation would have taken eighteen months and cost tens of thousands of dollars.

Through a structured mediation session, it was revealed that the core issue was not the curriculum, but the commute time and the after-school care options. By involving a mediator, the parents were able to agree on a third option: a high-performing public school located halfway between their homes with an excellent extracurricular program. They reached this agreement in one day, preserving their co-parenting relationship and their savings.

A Lawyer’s Perspective: Preparation is Key

In our experience, mediation fails when parties arrive unprepared or with unrealistic expectations. It is not just about "winning"; it is about finding a "liveable" solution.

The law requires a "genuine effort." This means coming to the table with disclosure of all relevant financial documents and a willingness to listen. We often see that when parties focus on the future rather than past grievances, the success rate of ADR increases significantly. It is important to remember that any agreement reached in mediation should be formalised into Consent Orders to make them legally binding and enforceable.

Key Takeaways

Mediation is usually a legal prerequisite for parenting orders
ADR offers more control over the outcome than a judicial decision
Arbitration is an efficient alternative for complex property disputes
Preparation and full financial disclosure are essential for success

Frequently Asked Questions

Is mediation compulsory in Australia?

Yes, for most parenting matters, you must attend Family Dispute Resolution and obtain a Section 60I certificate before applying to court, unless an exemption applies.

What happens if we reach an agreement?

If you reach an agreement, your lawyers can draft "Consent Orders." These are filed with the court and, once approved, have the same legal force as a judgment made by a judge.

Can I bring a lawyer to mediation?

Yes. While some community-based mediation services are "lawyer-assisted" or "lawyer-free," private mediation often involves lawyers to provide immediate advice on the fairness of proposals.

Is what I say in mediation confidential?

Generally, yes. Under the Family Law Act, communications made in FDR are confidential and cannot be used as evidence in court, with some exceptions related to child abuse or threats of violence.

What if the other person refuses to attend?

If a party refuses to attend mediation without a valid reason, the mediator can issue a Section 60I certificate noting the refusal. This may have costs implications if the matter eventually goes to court.