Mediation about Children

Child mediation (often called child custody mediation) is a process in which a neutral third-party (a mediator, or family dispute resolution practitioner) helps parents make decisions about their children’s future. It is most often used by separated couples, but is also used by parents who have never lived together and grandparents and other adults significant in a child’s life. The mediator’s job is to help people hear and understand each other’s perspectives so that they can resolve disputes, and make decisions together for the future.

There are many different circumstances when a parent (or other significant person in a child’s life) might participate in a mediation for children.

The most common time I see parents is shortly after separation, when there are lots of decisions to be made about their children and the grief of separation is making it difficult to communicate effectively.

For some people time doesn’t fully heal the wounds and communicating with their co-parent remains difficult, even many years after separation. When this is the case it can be helpful to use mediation for children at regular intervals, or to engage my help when particularly tricky issues arise so that conflict can be kept to a minimum, and away from the children.

Sometimes changes in circumstances (such as a parent repartnering, or wanting to move away) will create friction in a co-parenting relationship that has been travelling well. Working with me at these times can help keep a positive co-parenting relationship alive.

Sometimes I work with parents who have accidentally conceived a child in a short-term relationship. Co-parenting with someone you don’t know well can be particularly challenging. Having a neutral third party to help build an understanding of each other’s perspectives can be very helpful in these situations.

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

In Australia there is a legal requirement that people try to resolve disagreements about children through Family Dispute Resolution (often called ‘child custody mediation’) before making an application to the Family Court. This means that you don’t have to come to a child mediation if you are able to make decisions by yourselves - but if you think you will need a Judge to make orders, then you will have to try to reach agreement through mediation first.

Sometimes one parent tries to organise a child mediation, but the other parent says they won’t come, or doesn’t co-operate in organising appointments. When this happens I can issue a ‘s60I certificate’ saying that there has been an attempt to organise a mediation. This certificate enables an application to be made to Court. It is important to be aware though that I can only issue a s60I certificate if I have personally invited the other parent to attend mediation, and given them a reasonable opportunity to respond.

A child mediation can only go ahead if both parents will be safe (both physically and emotionally) and if both parents will be able to negotiate freely in the mediation. I will meet with each parent individually before holding a mediation. During those individual meetings I will learn more about the situation, from both your perspectives, so that I can make an assessment about whether mediation is appropriate. A history of family violence, or of one parent being intimidated by the other, doesn’t necessarily mean that mediation can’t happen. It is often possible to run the mediation in a way that will ensure that everyone can be safe, and have an equal voice, despite the history.

If I do form the view that mediation isn’t appropriate, then I am not allowed to run a mediation. In this situation I can, if asked by either parent, issue a s60I certificate, which enables an application to be made to Court.

I run most of my mediations in a video-conference environment.

In a video mediation I will meet you in a  video-conference room. If this will be a new experience for you I will be able to help you get set up and comfortable with the technology before our first meeting (and I won't charge any extra fees for the time we spend doing this).

At the beginning of the mediation I will have brief conversations with each of you to check that your technology is working properly and then we'll get started. The mediation may involve us all meeting in the one virtual 'room'. Or it may be conducted as a series of separate video-conference conversations with you and the other person. If you have a lawyer or other support person with you for the mediation then I'll join them to each video-conference conversation with you.

If you'd like to know more about what we'll be covering in those conversations - check out the section of this page titled 'What happens in a child mediation?'

When you first arrive I will have a brief private conversation with each of you. After these conversations we will start working ‘jointly’. Sometimes this involves all being in the same room together. Sometimes you will stay in separate rooms and I will carry messages between the rooms. If you would like to know how this works in online mediation - check out the section of this page titled "How do video mediation services work?"

Once we are working jointly I will ask each of you to say, in a nutshell, what the purpose of the mediation is (from your perspective), and what you think needs to be talked about. From there I will create an agenda of topics, based on what you each said. Before we go further I’ll check in about the agenda - to make sure everything is covered and to see if there are any topics that either person isn’t comfortable talking about that day. If there are, then those topics will be put aside so the conversation can focus on topics that everyone is OK to talk about that day.

As the conversation progresses I’ll be intervening in different ways to help you hear and understand each other’s perspectives and to keep the conversation productive. There might be times that I ask you to wait and let the other person speak. I might ask you to say more than you have - to explain your perspective a bit more, or to get creative and come up with ideas you haven’t imagined before that day. I’ll also help you find ways to say what you need to say in ways that the other person will find easier to hear. If it becomes clear that there won’t be agreement on a point I will make sure we move on to a different topic.

When the ‘joint work’ is happening in the same room I will usually ask to speak to each of you privately at some point (and sometimes this will happen multiple times). Each of you can ask for a break too - if you want to talk something through with me privately before raising it, or if you just need a break to clear your head.

Along the way it is likely that you will reach some agreements. When this happens I’ll capture them in writing so that you will have a record of the agreements you reached that day.

Sometimes people come to child mediation with one or two discrete issues. Other times there is a lot to discuss. When there are a lot of topics you are likely to need more than one mediation session. When parents are recently separated, it is sometimes best to make some short-term decisions in an initial session and come back to make longer term decisions once there is a bit more certainty about other aspects of the new lives you will be building. If you will need multiple mediation sessions I can help you work out where to focus first and which topics might be best saved for later.

Preparing for a parenting mediation by thinking about what you hope to achieve and setting things up so you can come in with the right mindset will help you get the most out of a mediation session.

Children don’t ever attend family dispute resolution. But it is possible to bring their voice into the room, so that their views can be taken into account in the decisions made by their parents and carers.

In Child Informed Practice, a separate professional called a Child Consultant meets with your child or children and finds out how they are experiencing life in a separated family. They aren’t ever asked to become a decision-maker, or to choose between their parents - because that places children in an impossible, and damaging position. Rather the child consultant explores what is working well, what isn’t, and what, if anything, your child wishes could be different. Depending on the age and maturity of the child this might be a fairly direct conversation, or it might be conducted through more indirect enquiry such as play therapy. After this meeting the child consultant will meet with you, your co-parent and me - to let us know what your children had to say.

Child Informed Practice can be very enlightening. Even when there is a very strong parent - child relationship it can be very difficult for children to be completely open with their parents (or even other extended family members and friends) about how the separation is affecting them. Meeting with the child consultant, who is independent and neutral, creates a space where children are able to speak more freely. There are often concerns raised by the children that are unknown to either parent.

If you reach an agreement

If you reach an agreement at a parent mediation you may want to formalise your agreement. There are two options (or you can just leave it as an informal agreement).

The first option is a ‘Parenting Plan’. For an agreement to be a Parenting Plan it needs to be in writing, signed by both parents and dated. A Parenting Plan isn’t ‘enforceable’ (which means people can’t get in trouble for not following it). But if there are court proceedings in the future you can show the Parenting Plan to the Judge, and the Judge can take it into account in deciding what Orders to make. Parenting Plans can be drafted by Family Dispute Resolution Practitioner (FDRPs) like me, by lawyers, or you can draft it yourself.

The second option is ‘Consent Orders’. Consent Orders are ‘enforceable’ (which means there can be consequences if people don’t follow the agreement). The process for turning an agreement into consent orders is more complex. You will need to complete specific court forms and a Registrar at the Family Law Courts will need to review your agreement and decide if it should be turned into Consent Orders. Consent Orders can be drafted by a lawyer, or you can draft the documents yourself.

There are benefits and disadvantages to both parenting plans and consent orders. It is a good idea to get legal advice before formalising your agreement so that you can make an informed decision about whether a parenting plan or consent orders is your best option.

If you don’t reach agreement

If there are some issues that aren’t resolved in your mediation you might want to book a further mediation session to talk about these issues further. Or it might be that one of you decides you need to ask a Judge to make a decision.

If you decide that you need a Judge to make a decision you will need to ask me to issue a ‘s60I certificate’ to say that you’ve attended mediation. This certificate doesn’t automatically start court proceedings - it is a document that you will need to provide to the Court when you start Court proceedings. You don’t need to ask for a s60I certificate straight away as I can issue a certificate up to 12 months after a mediation. Be aware though that it can only be used in the 12 months after a mediation. If it is more than a year since your mediation when you lodge a court application then you will have to try mediation again to get a new certificate.

Sometimes it is clear at the end of the mediation that there are some issues where you are going to be unable to agree, but others where further discussion might enable an agreement to be reached. If this is the case you can get a s60I certificate issued so that you can start the Court process for the unresolvable issue, and organise further mediation to keep working on the other issues.

If you think that you might need a s60I certificate to be issued then it is important to ensure that your mediator is a registered Family Dispute Resolution Practitioner (FDRP) because only registered FDRPs are authorised to issue them. You can check if a mediator is registered on the Commonwealth Attorney-General’s Departments’ website https://fdrr.ag.gov.au/.

If you definitely won’t need a certificate then, technically speaking, any qualified mediator can run your child mediation - but a registered FDRP is likely to be your best option because they have specific training about family law and children’s needs.