Mediation about Children

Child mediation is a structured process to help parents make decisions about their children’s future.

It is most often used by separated couples, but can also involve parents who have never lived together, as well as grandparents or other important people in a child’s life.

A neutral third party (a mediator) guides the conversation, helping each person to be heard and to understand the issues that need to be resolved.

The focus is on working through areas of disagreement and reaching practical, workable arrangements for the future.

Child mediation can be helpful in a range of situations.

The most common is shortly after separation, when there are many decisions to be made about children and communication has become difficult.

It is also often used:

• when communication remains challenging, even years after separation
• When new issues arise (for example, a parenting repartnering or wanting to relocate)
• When parents want support to maintain a positive co-parenting relationship over time

In some cases, mediation is used where parents have not previously been in a long-term relationship.  Co-parenting with someone you do not know well can be particularly challenging, and a structured process can help build understanding early.

I also work with grandparents and other relatives who are seeking to maintain a relationship with a child, or who have primary care of a child.

In most cases, yes.

In Australia, parents must attempt Family Dispute Resolution (often called child mediation) before applying to the Family Court for parenting orders, unless an exception applies.

This does not mean you need to attend mediation if you are able to reach agreement between yourselves.

If you think you may need the court to make decisions, mediation is usually a necessary first step.

This is a common situation.

Sometimes one parent is willing to participate in mediation, but the other does not respond to an invitation to participate, or declines to take part.

If this happens, I can issue a certificate (known as a s60I certificate) confirming that an attempt has been made to arrange mediation.  This allows an application to be made to Court if needed.

To issue a certificate, I must have personally invited the other parent to participate and given them a reasonable opportunity to respond.

Your safety is central to the process.

Mediation will only go ahead if it can be conducted safely (both physically and emotionally) and in a way that allows each person to participate freely.

Before any joint session, I meet with each person individually.  These meetings provide an opportunity to understand the situation and assess whether mediation is appropriate, and how it should be conducted.

A history of family violence, or feeling intimidated by the other parents, does no automatically mean that mediation cannot take place.  In many cases, the process can be structured so that everyone is safe and able to participate on an equal footing.

If I form the view that mediation is not appropriate, I am not able to proceed.  In that situation, I can issue a s60I certificate (if requested), which allows an application to be made to the Court.

I conduct all mediations online using video, so you can participate from a setting that feels comfortable and private.

If this is new to you, I will help you get set up and comfortable with the technology before we begin.  There is no additional cost for this.

At the starts of the session, I will check in with each of you to make sure everything is working smoothly.

We may meet together in the same online session, or separately, depending on what will work best for your situation. If you have a lawyer or support person, then can join the session with you.

Many people find online mediation more convenient and easier to manage than attending in person.

For more detail about what happens during mediation, you can refer to the section below titled ‘What happens in child mediation?”

Child mediation follows a structured but flexible process.

At the beginning, I will have a brief private conversation with each of you.  This is an opportunity to find out how you are that day and to privately discuss anything new that might affect the mediation.

From there, we begin working together.  This may involve meeting in the same online session, or separately, depending on what will work best.

I will then ask each of you to briefly explain what you would like to get out of the mediation and what you think needs to be discussed.  Based on this, I will create an agenda.  We will check that the agenda is right and complete and that you are both comfortable discussing the topics that have been raised.

As we work through the issues, my role is to guide the discussion and keep it productive.  This may involve:

• helping each person to be heard;
• Asking questions to clarify what matters most;
• Supporting you to express your views in ways that can be understood; and
• Keeping things moving if discussion becomes stuck.

There will also be opportunities to speak with me privately during the session.  You can request a break at any time.

As agreements are reached, I will record them in writing so that you have a clear record of what has been decided.

Some mediations focus on one or two specific issues.  Others involve a broader range of decisions and make take place over more than one session.  Where needed, I can help prioritise what to focus on first and what can be addressed later.

Preparing in advance – by thinking about what you would like to achieve and the reasons behind your preferred outcomes – will help you get the most out of the mediation.

Children do not attend mediation sessions.

However it is possible to bring their voice into the process so that their views can be taken into account in the decisions made by their parents and carers.

This is done by including a Child Consultant in the process. There are two ways in which a Child Consultant can assist.

Child-Focused Mediation 

In this approach, the child consultant attends the mediation session and offers insights about children’s developmental needs and the experience of growing up in a separated family.  This helps parents understand how the ideas they are exploring are likely to be experienced by their children.

Child Informed Practice 

In this approach, the Child Consultant meets with your child or children to understand how they are experiencing life in a separated family.

They are not asked to make decisions or choose between their parents.  Instead, the focus is on understanding what is working well, what is not, and what (if anything) your child would like to be different.  Depending on their age and maturity, this may involve direct conversation or more indirect approach such as play-based discussion.

The Child Consultant then meets with you, your co-parent and me to share the key themes arising from those conversation.

This process can be very valuable.  Even in strong parent-child relationships, children do not always feel able to speak openly about how separation is affecting them.  Speaking with an independent and neutral professional can make this easier, and can bring forward concerns that may not otherwise be known to either parent.

The approach used will depend on your situation and what is likely to be most helpful.

If you reach an agreement

If you reach an agreement in mediation, you may choose to formalise it – or keep it as an informal agreement.

There are two common ways to formalise an agreement:

Parenting Plan

A Parenting Plan is a written agreement that is signed and dated by both parents.  It is not legally enforceable, but it can be taken into account by a court if proceedings occur in the future.  Parenting Plans can be prepared by a Family Dispute Resolution Practitioner, a lawyer, or by you.

Consent Orders

Consent Orders are legally enforceable.  This means there be consequences if they are not followed.  The process is more formal – you will need to complete court documents, and a Registrar will review the agreement before it becomes an Order of the Court.  Consent Orders can be prepared by a lawyer or drafted by you.

There are advantages and disadvantages to both options. It is often helpful to obtain legal advice before deciding how to formalise your agreement.

If you don’t reach agreement

If some issues remain unresolved, you may choose to arrange a further mediation session.

Alternatively, one or both of you may decide to ask a court to make a decision.

In that case, you will need a s60I certificate confirming that mediation has been attempted.  I can issue this certificate following mediation.

The certificate does not start court proceedings – it is a document you provide when filing an application.

You do not need to request the certificate immediately.  A certificate can be issued up to 12 months after mediation, but it must be used within that period.  If more than 12 months has passed, a further attempt at mediation will usually be required.

In some situations, it is possible to proceed to court for certain issues while continuing mediation about others.

If you are not able to reach agreement in mediation and need to apply to the Court, you will need a s60I certificate.  This certificate confirms that mediation has been attempted.

If you think you may need a s60I certificate, it is important to ensure your mediator is a registered Family Dispute Resolution Practitioner (FDRP), as only registered FDRPs are authorised to issue them. 

I am a registered Family Dispute Resolution Practitioner.

You can check if a mediator is registered on the Commonwealth Attorney-General’s Departments’ website https://fdrr.ag.gov.au/.

If you are confident that you will not need a certificate, a qualified mediator who is not an FDRP can still conduct a child mediation.  However, a registered FDRP is often the better option as they have specific training in family law and children’s needs.

The time needed for child mediation can vary, but most matters progress within a few weeks.

When both parents are willing to participate, the initial individual appointments are usually held within one to two weeks of first contact. The joint session is then typically arranged one to two weeks after that.

If one person needs to be invited to mediation then the process might take a little longer.  When I send an invitation the other person is given three weeks to decide if they are would like to participate.  If they respond sooner then the process can move more quickly.  If they take the full time, the joint session will usually take place around four to six weeks after first contact.

If you would both prefer to move more slowly, that can also be accommodated.