Is mediation viable for family’s with existing parenting orders or just a waste of time?
All parents, no matter if just separated or have been co-parenting for a while who have difficulty resolving disputes about parenting arrangements are required to undertake Family Dispute Resolution (FDR) before requesting court assistance. So, does FDR really work for parents who have been ‘around the block’ with existing court parenting orders? I have attended a few private mediations as a McKenzie Friend, and noticed a trend in similarities at these sessions:
1. Current parenting orders were less than 2.5 years old
2. Topics grouped into Visitation, Communication, Counselling and Child Support
3. There was underlying control issues
4. A new partner had come into the equation
5. Some compromises were accomplished, but no visitation changes agreed
6. A half-day time slot to mediate was not long enough to reach an agreement
7. The s60i certificate was issued leaving the parents in the same position as when they arrived.
8. The party who initiated mediation, was the father, who attended with a lawyer; and was the non-custodial parent with a ‘significant time’ regime in place (4-5 nights a fortnight) and wanting shared care of 7:7 week about.
It goes without saying, these parties walked away angry, stressed, anxious and with the thought that the $2,500+ was a waste of money, time and energy. Furthermore, what do they do from here as the disputes remain?
The options are; firstly to walk away leaving the existing orders, secondly try another round of mediation, thirdly negotiate with lawyers or direct; or lastly step into the court arena. Which one would you pick? Three out of the four options will cost more money. So how much money are you willing to ‘blow’ on the possibility, not the certainty, of getting the parenting orders discharged in favour of new ones?
I came across an article - Family Dispute Resolution: Use, Timing, and Outcomes; published on 07 March 2019 which surveyed over 10,000 parents on FDR. The findings paralleled my observations.
This data revealed insights pertaining to timing and the effectiveness of FDR:
· That the longer the parties are separated, the less likelihood parents reached an agreement through FDR;
· Triggers for engaging FDR post orders relate to children's ages and renegotiation of parenting arrangements; and
· There were much higher rates at which the s60i certificates are issued for this group.
Overall, children's needs can change with age. But does increasing visitation really meet these age changing needs or is it something else they need? Or is it parents own personal interests being agitated at mediation resulting in it being a waste of time? Separated parents who use FDR to re‐negotiate parenting arrangements certainly appear to be facing special challenges.
This suggests mediators might need to be attuned to the contrary expectations of parents with parenting orders. For example, the fact that there are difficulties in altering pre‐existing agreed‐upon arrangements suggests mediators may need to allow ‘extra’ time to explore the underlying issues and interests before issuing the certificate. I wonder if mediators would be willing to do a deal “the second half for free” if the first half didn’t produce an amicable result? Business always looks for a return on investment. The mediator gets their invoice paid upfront. So parents in this transaction with mediators could also reasonably expect a better ROI than walking out in exactly the same position they came in with.
At the end of the mediation day, someone needs to give in out of the party of three involved.