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Communtity Law Manual | Parents, guardians & caregivers | “Family Dispute Resolution”: Mediation through the Family Court

About the Family Court

“Family Dispute Resolution”: Mediation through the Family Court

Overview of Family Dispute Resolution

Care of Children Act 2004, ss 46E; Family Dispute Resolution Act 2013, s 12

In Family Dispute Resolution (FDR) an independent mediator will help the parents discuss and try to reach agreement on the issues in dispute.

Family Dispute Resolution is usually compulsory in most Care of Children Act cases, so that you usually can’t apply to the Family Court for it to deal with a dispute unless you’ve already attempted to resolve the dispute through the FDR process. (See “Guardianship of children / Disputes between guardians” and “Care arrangements when parents have separated / Parenting orders / Compulsory steps before you can apply for a parenting order” in this chapter.)

Note: Family Dispute Resolution replaced the free counselling and mediation services that were previously provided to all people taking disputes to the Family Court.

What happens in Family Dispute Resolution?

Family Dispute Resolution Act 2013, s 11

In Family Dispute Resolution, both of you will meet together with the mediator. The process will be an informal one and will not be like being in a court.

The mediator will:

  • help you and the other person identify the issues that are in dispute
  • help you have a discussion around these issues, and
  • help you try to reach an agreement that best serves the welfare and best interests of the children.

The mediator will tell you how many sessions you will need to have.

Before the FDR process begins you will have an initial talk with one of the FDR mediators on your own – this could be over the phone. The mediator will find out from you about the other person involved in the dispute. The mediator will contact the other person and will assess whether your dispute is suitable for Family Dispute Resolution.

The mediator may decide to offer you some counselling before the mediation sessions start (“preparatory counselling”), particularly if you’re feeling nervous about going to mediation. This might be offered just to you, or to the other person as well.

Who will run the Family Dispute Resolution process in my case?

The process will be run by someone who’s been approved as a Family Dispute Resolution mediator by an organisation such as the New Zealand Law Society, AMINZ (the Arbitrators and Mediators Institute of New Zealand), or LEADR (Association of Dispute Resolvers).

Some of these mediators will also be lawyers with experience in the Family Court. All will be trained and professionally qualified in helping to resolve family disputes such as yours.

To find an approved Family Dispute Resolution mediator, contact the Family Court or go to www.justice.govt.nz/family-justice

Do I have to pay to use Family Dispute Resolution?

If your income is below a certain limit, you won’t have to pay anything. To find out whether you’ll need to pay or not, use the Family Court’s online financial eligibility table available online: www.justice.govt.nz/family/care-of-children/resolving-parentings-disagreements/mediation-to-work-out-parenting-disagreements/qualifying-for-funding/

People who are above the income limits will have to pay for Family Dispute Resolution.

If you qualify for the free FDR service, any preparatory counselling you’re offered by the mediator will also be free.

If you don’t qualify for the free FDR service, counselling may be subsidised according to your income.

Can I take a support person or lawyer with me?

You can bring a support person with you to the Family Dispute Resolution sessions – such as a friend or family member – if the mediator and the other person agrees to this.

Lawyers don’t attend the FDR sessions.

What if I feel too intimidated to go through mediation with my ex-partner?

Care of Children Act 2004, s 46E; Family Dispute Resolution Act 2013, s 121

You can apply to the Family Court without first going through Family Dispute Resolution if you can show that one or both of you would be unable to participate effectively in the process, or that the other person has been violent towards you or your children. You’ll need to provide an affidavit (a sworn statement) with your application providing evidence of this.

The Family Court Registrar can refuse to accept your application if your affidavit doesn’t satisfy them that you should be excused from Family Dispute Resolution. If they’re unsure, they can refer the issue to a judge to decide.

In cases that don’t involve violence, it’s not yet clear what kinds of reasons the Family Court will accept as showing that you’re “unable to participate effectively” in FDR. The examples given by the Family Court on its website are limited to practical issues, such as language barriers or one of the people being overseas.

If you try Family Dispute Resolution but partway during the process you feel you can’t continue, you should raise this with the mediator. The mediator can decide that it’s inappropriate to continue the process on one the following grounds: because one or both of you is unable to participate effectively in the process; or because the other person has been violent towards you or your children; or because the situation gives the mediator reasonable grounds to think that FDR is inappropriate in your case. If the mediator decides to stop the FDR process they’ll give you a form stating this and you’re then free to apply for a Family Court order. You should attach the mediator’s form to your application.

If your ex-partner has initiated Family Dispute Resolution, the mediator will contact you to check that FDR is appropriate for your case. If you don’t feel you will be able to go through the process, you should tell the mediator. They may decide, on one of the three grounds explained above, that FDR shouldn’t take place. If so, you or your ex-partner could then apply for a court order without having to go through FDR.

What if Family Dispute Resolution doesn’t resolve the dispute?

If going to Family Dispute Resolution doesn’t resolve all the issues in dispute, you can apply to the Family Court under the Care of Children Act for it to decide the dispute. You have 12 months to do this – otherwise you’ll have to go through Family Dispute Resolution again. (See “Guardianship of children / Disputes between guardians” and “Care arrangements when parents have separated / Parenting orders” in this chapter.)

What if we reach an agreement but I decide I’m not happy with it?

Care of Children Act 2004, ss 46E; Family Dispute Resolution Act 2013, s 12

If after trialling the arrangements agreed at Family Dispute Resolution you decide you’re not happy with them, you can apply to the Family Court under the Care of Children Act for it to deal with the issue. You have 12 months to do this – otherwise you’ll have to go through the FDR process again. (See “Guardianship of children / Disputes between guardians” and “Care arrangements when parents have separated / Parenting orders” in this chapter.)

However, you may not necessarily be able to take the issue to the Family Court straight after reaching an agreement at FDR if you’ve simply changed your mind or if you now feel that you were pressured into the agreement. In those cases, it could depend on whether the Family Court decides it’s appropriate for you to be able to challenge the FDR outcome immediately.

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