Mediation offers a way for you and your ex-partner to settle disputes over parenting or property without the need for court intervention. It’s generally faster and more cost-effective than applying for court orders.
The process is confidential, meaning anything discussed in mediation cannot be used against you later if the matter proceeds to court.
Getting Started with Mediation
After applying for mediation, you and your ex-partner will undergo an intake process. This step allows the mediator to assess whether mediation is appropriate for your situation, taking into account factors like domestic violence, safety concerns, power imbalances, risks to children, and the emotional and psychological well-being of both parties.
If mediation is deemed suitable, you and your ex-partner will be invited to attend a session at a mutually convenient time. Mediation can take place in person, over the phone, or via Zoom.
During mediation, the mediator’s role is to:
- Identify the key issues,
- Explore practical and workable solutions, and
- Keep both parties focused on the issues at hand.
It’s important to note that children are not allowed to attend mediation.
Reaching an Agreement
If an agreement is reached during mediation, it’s advisable to put it in writing. For further details on how to formalise agreements, refer to the resources on Parenting and Finance and Property.
Confidentiality
All discussions in mediation are confidential, meaning they cannot be used as evidence in court or shared with others, except in specific circumstances, such as:
- If there is a risk of child abuse,
- If there is a serious and imminent threat to someone’s life or health,
- If the mediator is helping an independent children’s lawyer to represent a child’s interests, or
- If you consent to the information being disclosed.
It’s an offence to disclose confidential information obtained during mediation unless an exception applies.
Section 60I Certificate
In most cases, before applying for parenting orders, you will need to submit a section 60I certificate with your application.
To obtain this certificate, you must first contact a mediator about mediation. A mediator can issue a section 60I certificate if:
- Mediation is not suitable for your case,
- You or your ex-partner fail to attend mediation,
- One of you does not make a genuine effort during mediation, or
- You both genuinely tried but couldn’t reach an agreement.
The section 60I certificate is valid for 12 months, and you must file it with your application for parenting orders unless the court grants you an exemption.
If you and your ex-partner successfully reach an agreement during mediation, a section 60I certificate will not be issued. Should you later wish to apply for parenting orders, you will need to attend mediation again unless you qualify for an exemption.
For more details, see the Compulsory pre-filing Family Dispute Resolution – court procedures and requirements on the Federal Circuit and Family Court of South Auckland Manukau website.
Exceptions to Attending Mediation
Parenting
Mediation is generally required before applying for parenting orders, except in the following situations:
- You are applying for consent orders,
- The matter is urgent, such as in the case of a Recovery Order,
- There are allegations of family violence or child abuse,
- One party is unable to participate effectively due to distance or other factors, or
- You are applying due to a breach of an existing order made within the last 12 months, with reasonable grounds to believe the breach was serious.
For further information, refer to the Before you file – pre-action procedure for parenting cases (prescribed brochure) on the Federal Circuit and Family Court of South Auckland Manukau website.
Property
You must attend mediation before applying for financial or property orders, except when:
- The matter is urgent,
- There are allegations or risks of family violence,
- Complying with pre-action procedures would cause undue hardship,
- You’ve been involved in property proceedings within the past 12 months,
- The matter involves a child support application or appeal, or
- The proceeding involves a court’s jurisdiction in bankruptcy under sections 35 or 35B of the Bankruptcy Act 1966.
For more information, see Before you file – pre-action procedure for financial cases (prescribed brochure) on the Federal Circuit and Family Court of South Auckland Manukau website.
Failure to Mediate
The law requires you to make a genuine attempt to resolve disputes with your ex-partner through mediation before applying for court orders related to parenting or property.
If you refuse to participate in mediation or do not make a genuine effort, the mediator may issue a section 60I certificate stating that you did not attend or did not genuinely try.
If parenting orders are sought, the court may reject your application and require you to return to mediation. Additionally, the court may order you to pay costs.
Conclusion
At Clarity Family Lawyers, our mission is to help you gain clarity and take the next steps in your life. Our approach is both compassionate and dignified. While we’re prepared to use firm strategies when needed, we believe in fostering amicable relationships, as experience shows that a cooperative approach often yields the best results.
