FDRP mediation or Family Dispute Resolution is considered as an alternative dispute resolution method to settle family law disputes.
However, this myth needs to be debunked due to the costs involved in the process. One of the misconceptions is that FDRP mediation is a cheap and fast way to resolve family law disputes. But in reality, it can be expensive, especially for low-income families, as the fees for the mediator and lawyer can add up.
Moreover, FDRP mediation may not work in all cases, and if unsuccessful, parties may end resorting to litigation, which can further add to the expenses. Another issue is that some mediators may not be trained and experienced enough to handle complex family law disputes, which can also contribute to the high costs. Therefore, FDRP mediation can be a useful tool for resolving family law disputes if the mediator is experienced and both parties are willing to negotiate in good faith. However, it is essential to recognize the costs involved and plan accordingly
Pre-litigation dispute resolution requirements have been increasingly used in Australia and overseas jurisdictions due to widespread dissatisfaction with litigation as a pathway to resolution.
Benefits and critiques of the s. 60I provisions
(Adapted from Shelby Higgs Howarth and Catherine Caruana- Working Paper)
The s. 60I provisions were intended to limit the involvement of courts to the more difficult cases and to promote cooperative parenting after separation.
Critiques of the s. 60I provisions include concerns about the potential for abuse, the impact on vulnerable parties, and the effectiveness of the certification process.
Benefits of the s. 60I provisions include increased access to dispute resolution services, reduced costs and delays, and improved outcomes for families.
Empirical evidence of the impacts of the s. 60I provisions
There is a growing body of evidence in Australia regarding the combined effect of the reforms on families requiring assistance to resolve disputes over the care of children, emerging primarily from government-commissioned evaluations.
However, there has been little empirical research on the certification process at the core of the s. 60I provisions.
Other Interpretations of ‘Genuine Effort’
The requirement for disputants to demonstrate a bona fide attempt to resolve issues prior to initiating court action exists in other areas of Australian civil law and has been identified as a potential source of guidance in interpreting ‘genuine effort’.
The ‘genuine steps’ requirement in the Civil Dispute Resolution Act 2011 (Cth) adds little to the interpretation of genuine effort.
The ‘good faith’ standard used in contract law and some family law jurisdictions overseas where mediation is mandated is not directly applicable to the FDR context.
Overall, caution should be exercised when using similar concepts to aid in the interpretation of genuine effort.
Barrier to accessing courts:
Some opponents of s. 60I argue that the certifications constitute a barrier to accessing justice that violates their fundamental rights.
Feminist critique
Engaging in mediation presents particular risks for women that are magnified when family violence is present.
Gendered assumptions about women’s behaviour may influence FDRPs’ assessments of ‘genuine effort’, even if unconsciously.
Included in the 2006 reforms were changes that sought to give the issue of family violence greater prominence in the FLA.
Concerns about family violence and gender bias are not unique to the Australian experience of FDR.
Impact on the family law system
Following the reforms of 2006, there was a swift and marked decline in applications to the family courts for parenting orders.
The use of FDR services increased significantly, with an increase of 57% for existing and expanded FDR services, and 336% for the network of FRCs.
Reduction in applications to family law courts
The reduction in applications to family law courts to settle disputes over children and the corresponding increase in the use of FDR clearly indicates an increase in the use of non-litigious pathways by separating parents.
Fewer parenting disputes are being resolved primarily using legal services and more are achieving resolution primarily via assistance from family relationship services.
Post-FDR trajectories
In high-conflict cases, 63% did not reach agreement compared with 12% of middle- and low-conflict cases.
The international evidence points to the potential for harm for women and victims of violence.
Address feminist critiques of the process
2012 reforms aimed to improve responses to disputes involving children in cases of violence and abuse:
Amendments to the FLA that came into effect in 2012 were intended to support increased disclosure of concerns about family violence and child abuse.
However, some critics argue that the reforms have not adequately addressed issues of family violence and power imbalances.
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