Family law mediation

How mediation works

If you have separated from your partner and you need help to reach an agreement about parenting or property, you can attend mediation, also known as Family Dispute Resolution.

You can attend mediation before or after going to court. 

Mediation is a practical way for you and your ex-partner to resolve any disputes about parenting or property without going to court. It is much cheaper and quicker for you and your ex-partner to reach an agreement at mediation than it is to apply for court orders.

Mediation is confidential, so anything you say can’t be used against you later if you have to go to court.

After you apply for mediation, you and your ex-partner will be asked to complete an intake so that the mediator can check whether your case is right for mediation. They will consider a range of issues, including domestic or family violence, safety, equality of bargaining power, risks to children and the emotional and psychological health of you and your ex-partner.

If your case is right for mediation, you and your ex-partner will be invited to attend mediation at a date and time that suits you both. You may be asked if you want to attend mediation in person, by telephone or zoom.

At the start, the mediator will explain how the mediation will run and go over the background and issues in your case.

You and your ex-partner will be given time to talk about any issues that are important to you. You will also be able to talk to the mediator alone. The mediator can’t tell your ex-partner what you have said unless you agree.

Throughout the process, the mediator will help you to:

• identify the issues
  
• test solutions to the issues to see if they are practical and workable
  
• try to keep you both on track and focused on the issues. 
  

You can’t bring your child to mediation.

If you reach an agreement at mediation, you should put it in writing. For information about how to do this, see:

• Parenting
• Finance and property.

Confidentiality

Anything you say during mediation is confidential. This means it can’t be used as evidence against you in court and it can’t be shared with anyone, exceptions where:

• a child is being abuse or is at risk of child abuse
  
• there is a serious and imminent threat to the life or health of a person
  
• the mediator is assisting an independent children’s lawyer to property represent a child’s interests
  
• you give your consent to the information being disclosed. 
  

It is an offence to disclosure confidential information obtained during mediation unless an exception applies.

Section 60I Certificate

In most circumstances, to apply for parenting orders you will need to file a section 60I certificate with your application.

To get a section 60I certificate, you must contact a mediator about mediation.

A mediator can issue a section 60I certificate if:

• mediation is not appropriate in your case
  
• you or your ex-partner don’t attend mediation
  
• if you or your ex-partner don’t make a genuine effort during mediation
  
• you both made a genuine effort during mediation but couldn’t reach an agreement.
  

A section 60I certificate is valid for 12 months. If you have a valid section 60I certificate, you can apply for parenting orders. You must file this certificate with your application, unless the Court grants you an exemption.

If you and your ex-partner reach an agreement at mediation, you won’t be given a section 60I certificate. If you later want to apply for parenting orders, you will need to attend mediation again unless you are exempt.

For more information, see Compulsory pre-filing Family Dispute Resolution – court procedures and requirements on the Federal Circuit and Family Court of Australia website.

Exceptions to attending mediation

In limited circumstances, you are not required to attend mediation.

Generally, you are not expected to attend mediation if:

• it is not safe to do so, or
• you have already attended mediation to resolve your dispute but were unsuccessful.

Parenting

You must go to mediation before you apply for parenting orders, except if:

• you are applying for consent orders 
• your case is urgent, for example, you are applying for a Recovery Order
• there are family violence or child abuse allegations
• you or your ex-partner can’t participate effectively in mediation, for example because you are too far away
• you are applying because your ex-partner breached an order that was made within the last 12 months, and there are reasonable grounds to believe your ex-partner showed a serious disregard for their obligations under the order they breached.

For more information, see Before you file – pre-action procedure for parenting cases (prescribed brochure) on the Federal Circuit and Family Court of Australia website.

Property 

You must go to mediation before you apply for financial or property orders, except if:

• your case is urgent
  
• there are family violence allegations, or a risk of family violence
  
• you would be unduly prejudiced if you were required to comply with the pre-action procedures
  
• you and your ex-partner have been involved in property proceedings in the same 12 months immediately prior to the commencement of proceedings
  
• if the proceeding is a child support application or appeal, or
  
• if the proceeding involves a court’s jurisdiction in bankruptcy under section 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 Australia website.

Failure to mediate

Under the law, you must make a genuine attempt to resolve any disputes with your ex-partner about parenting or property by going to mediation, before applying for court orders.

If you refuse to participate in the mediation or don’t make a genuine effort, the mediator may issue a section 60I certificate stating that you did not attend or did not make a genuine effort.

If you or the other parent apply for parenting orders, the Court may not accept your application and you will have to go back to mediation. The Court may also make a costs order against you.

Court ordered mediation

If your case goes to court, you will usually be ordered to attend mediation. Generally, this will happen at the beginning of the case, or after an interim hearing. However, the Court can order you and your ex-partner to attend mediation at any time during the case.

The mediation can be conducted by:

• a Registrar
• Legal Aid NSW
• Family Relationship Centre, or
• private mediator.  

A mediation can be done:

• face-to-face
• via Microsoft Teams, or
• telephone.

The Court can make orders to prepare your case for mediation. It is important that you comply with any orders the Court makes, including to attend mediation. If you don’t, your case may be delayed, and you may be ordered to pay your ex-partners legal costs.

For more information, see the fact sheet Court-based Family Dispute Resolution on the Federal Circuit and Family Court of Australia website.

Dispute Resolution Report

If you attend court-ordered mediation, the mediator will prepare a report to the court that states whether you and your ex-partner:

• attended mediation
• made a genuine attempt to resolve the issues in your dispute, and
• reached an agreement.

This report will be added to the court file and will be available to the Judge. The Judge can take this report into account when making orders in your matter, including costs orders. For this reason, it is important that you attend mediation and make a genuine attempt to resolve your dispute. 

Conduct at mediation

During any mediation, it is expected that you will act in a sensible and responsible manner.

Throughout the process, you must consider:

• the best way of identifying and resolving the issues in your dispute
• how to avoid protracted, unnecessary, hostile and inflammatory exchanges
• your duty to make full and frank disclosure of all information relevant to your case.

You must not use mediation for an improper purpose, such as to harass your ex-partner or delay the case. 

Cost

The cost of mediation varies depending on whether you use:

• a Family Relationship Centre
  
• the Family Relationships Advice Line
  
• Legal Aid NSW
  
• a private mediator
  

You don’t have to pay an up-front fee for Legal Aid NSW mediation. However, if you get a cash payment of $30,000 or more in your property settlement you must pay a contribution towards the cost of your lawyer.

Attending mediation is far cheaper and less time consuming than going to court.

Mediation services

Legal Aid NSW provides free mediation to help people with their parenting and property matters. If you are eligible for mediation Legal Aid NSW, your lawyer will attend mediation with you to give you advice and support during negotiations and put your agreement into writing. To find out whether you are eligible to attend mediation at Legal Aid NSW, call 1300 888 529.

In addition to Legal Aid NSW, there are a number of other services that provide mediation. To find another service, see: 

• Find local help on the Family Relationship Online website
  
• Family Relationship Advice Line on the Family Relationships Online website or call 1800 050 321
  
• Family Dispute Resolution Register on the Family Relationships Online website.