New reforms of Family Law were introduced in Australia, and have been operative from July 2007. These reforms envisaged and the position is such that it is obligatory for parties wishing to commence a parenting action in the Family Court of Australia (and of course, for Constitutional reasons beyond the scope of this article, in the Family Court of Western Australia), to provide a Certificate from a Registered Family Dispute Resolution Provider (or mediator, in other words) issued in terms of Section 60I of the Family Law Act of 1975 (Clth).



Section 60I Certificates can reflect certain different scenarios; for example, that the contacting party (the one who seeks out mediation and makes the initial phone call, if you like) made a genuine effort to have the matter mediated but failed because of the other party's failure or refusal to attend.

Secondly, the Certificate could provide that the parties made a genuine effort to mediate their dispute, but were not successful for one or another reason (not every dispute can progress to a successful mediated outcome and that may involve no element of fault on the part of either party or the mediator).

One long-standing exception to mediation relates to the issue of the parties' safety in the process. If there is any prospect of the parties' negotiating power being out of balance, the mediation should not proceed. The threat or presence of domestic violence or indeed, emotional abuse may make it difficult to feel empowered to negotiate properly in the mediation. This is where the skill of the mediator is really tested and this judgment will take place during the initial assessment/interview phase. There is also provision for the parties to apply for an exemption from the requirement that they should seek mediation on this special basis.

With regard to the last-mentioned category, this type of Certificate is envisaged to deal with the traditional complaint that is rendered as criticism of mediation, that power imbalances may not be properly addressed in mediation. There is a large artillery of criticism along this line that emerged from the early days of mediation and still today. No mediation should go ahead if a power imbalance cannot be redressed, but I believe this turns on the skill of the mediator and the likelihood and possibility of correct procedures being put in place.

Finally, a Certificate that one does not want to be the recipient of could provide that the parties made no genuine effort to settle the dispute through mediation. This is designed to thwart people who seek to attend mediation in order just to earn a Certificate and hence have 'their day in Court'. A discerning mediator should see right through this ploy and the possibility exists that the Court might refer the parties back to mediation or order that they receive a punitive award of costs against them.

This is how Australia finds itself at this point in time with regard to 'mandatory mediation'.

On this point, it is interesting to note that one of the criteria that identify the process of mediation is that the parties must enter into it voluntarily, by their own choice, without any coercion. How then to reconcile this requirement with the fact that parties are now being compelled to mediate in certain instances? The thinking is that there is a clear distinction between compelling parties into the process of mediation as opposed to forcing them to mediate whilst they are in that process. One wonders whether the Australian Reforms in fact go too far, since if client parties exercise their voluntary decision not to adopt that process, they can be penalized by an Order of punitive costs against them. It is respectfully submitted that it will remain with the Judicial Officers to tread a line of caution here, so that parties who refuse and/or fail to attend mediation are not seen to be prejudiced by exercising a choice that qualifies the very nature of the process itself.

If you are a separating party, you might think that mediation is the answer to your prayers. Certainly this is not true and there are various safeguards that should be applied.

The point of departure for all parties should be to check out the background and credentials of the mediator. In the past, there were no rules and regulations governing who could mediate family disputes. This is now being looked at. The introduction of registration requirement, at least for an interim period, has been introduced. What this means is that anyone who wishes to mediate in the Family Law field and be eligible to issue a Section 60I Certificate, must go through a process of registration through a Government body.

As things stand in Australia now, anybody who wishes to be registered as a Family Dispute Resolution Provider will have their training assessed by a governing body to ensure that they have at least the minimum required standards. Only then will the mediator be put on the Register and issued with a registration number that must be used on the relevant Certificates. Thus parties have this innate safeguard that the mediator that they chose is competent. Organisations who legitimize mediators by virtue of their employment with them, must undertake the proper checks and balances of their credentials.