During court proceedings it is generally required to attempt Alternative Dispute Resolution prior to any final hearing. In children’s matter is it a requirement prior to commencing proceedings, except in extenuating circumstances (danger, urgency etc).
A mediator who is also a Family Dispute Resolution Practitioner has the ability to issue a Section 60i Certificate, the document required to commence court proceedings relating to children. The purpose of the certificate is to push the parties to talk to each other and resolve their issues without recourse to litigation, which is stressful, costly to the parties, costly on the public and can be a long and drawn out process.
Section 60i of the Family Law Act 1975 (Cth) sets out the requirements and also the grounds that the certificates are issued. The various grounds for which a 60i Certificate may be issued include:-
a) The other party refused or failed to attend mediation;
b) The practitioner deemed mediation inappropriate;
c) The parties attended mediation and made a genuine effort;
d) The parties attended mediation but one or more party did not make a genuine effort; and
e) Mediation commenced however part way through the practitioner deemed it not appropriate to continue.
It is important to understand the significance of the Certificate as the issuing of a certificate on the grounds that a party refused/failed to attend or did not make a genuine effort could have negative consequences should the issues proceed to litigation.
Whilst most of the reasons for issuing a 60i certificate are easily defined, the issue of genuine effort continues to be a point of contention and in fact no specific definition for what is considered a genuine effort is provided. Rather, the determination of genuine effort is based on a professional call made by the practitioner.
It is my view that genuine effort includes listening, communicating with a view to explain and understand, as well as ensuring the process is child focused rather than focused on the positions of the parties. Unfortunately, it is never this simple and sometimes there is simply no common ground and whilst the other party may feel that there wasn’t a genuine effort made, it is at the practitioner’s discretion.
Another part of making a genuine effort is attending mediation with the right mindset. If a party attends mediation with a view, that they are simply there to obtain the 60i certificate, or to cause damage to the other person it is not making a genuine effort. We want to hear that you are willing to discuss your views, issues and concerns as well as listen to the other person.
At the end of the day, mediation will not always resolve entire matters on a final basis, but it can be a great tool at lessening the issues as well as assisting everyone to understand each other’s points of views even if they aren’t agreed to. Despite this, it is important to attend mediation with an open mind and a willingness to communicate and negotiate.
If you think that mediation may assist your circumstances telephone us to see how we can help.