Care of children disputes - mediation 

 

 
What is Family Dispute Resolution and when is it necessary?

Family Dispute Resolution (FDR) is a mediation process to help parents and guardians resolve a dispute over the care of their children.

This service is provided by a Ministry of Justice-approved FDR mediator (these are listed on the Ministry of Justice website). During the FDR process, you’ll both work with an independent mediator to discuss the issues and try to come to an agreement about the day-to-day care of your children.

The Family Court recommends that you both compete the Parenting Through Separation (PTS) course before going on to FDR service.

At the end of the FDR sessions you’ll receive a certificate which confirms you have completed this step, including a record of what steps you have taken so far to resolve your dispute. If you end up going to court (because after completing FDR, you still haven’t come to an agreement) you will need to show this to prove you have done this step in the last 12 months.

To find an FDR mediator, search the Family Justice website or call the Family Justice line 0800 2 AGREE (0800 224 733).

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What will happen during Family Disputes Resolution?

The FDR mediator (mediator) will start by doing an assessment of your case, and decide whether:

  • there are any risks e.g. of harm to your or the children or
  • either or both parties are unsuitable for taking part in FDR
  • either or both parties are eligible for government funding

If mediation is not suitable

If the FDR mediator assesses that domestic violence is involved they will advise you of what your next step should be – they may not go ahead with mediation. They may, for example, advise you to contact a family lawyer and go the Family Court for a temporary parenting order or interim parenting order, and recommend an appropriate agency to help you.

If the assessment is that one or both parties are unsuitable for FDR, then mediation won’t go ahead and you can apply to the Family Court for a decision. See our Care of children disputes - going to court page for more information about exemptions from FDR.

The FDR mediator may also decide that both parties are suitable for FDR, but that one or both parties would benefit from preparatory counselling (for example, your behaviour shows that you are too angry or stressed to think clearly). If this happens, they will refer them to up to three hours of counselling.

If mediation is suitable

If the mediator determines that it is appropriate for mediation to go ahead, then the parties involved will attend a number of mediation sessions (how many will depend on the situation; the mediator can tell you how many sessions will be necessary).

During mediation, you and the other party or parties will have a chance to express your points of view. The mediator will ensure that you focus on the key issues e.g. who will live with whom; arrangements after school and in the holidays; how change-overs are managed. You can also discuss guardianship-type issues such as where the children will go to school, what religious instruction they’ll receive etc.

If an agreement is reached

If you reach an agreement during mediation, the mediator will get it down in writing and no further action is necessary. You do have the option of formalising the agreement so that it is legally binding, but you’ll need to apply to the Family Court for this and pay some fees. See our Care of children disputes - going to court page for more about going to the Family Court for care of children issues.

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Do we have to pay for preparatory counselling?

If you attend preparatory counselling because it has been recommended by the FDR mediator, and you are eligible for funding it will be free.

If you aren’t eligible for funding, you’ll have to pay - how much it’ll cost will depend on the provider. To find out whether you are eligible for funding, view the eligibility table on the Ministry of Justice website. It’s possible for one party to be eligible while the other is not.


What happened to the free relationship counselling that used to be available through the Family Court?

Free preparatory counselling is available if it has been recommended by your Family Dispute Resolution (FDR) provider, and if you are eligible for funding. (To find out whether you are eligible for funding, view the eligibility table on the Ministry of Justice website or call the Family Justice line 0800 2 AGREE (0800 224 733).)

If your case is with the Family Court, counselling may be available where directed by the judge.

Otherwise if you need relationship counselling your local CAB can help you find a relationship counsellor (but it probably won’t be free).

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How do I find an FDR mediator?

All approved FDR mediators are listed on the Ministry of Justice website.

Be aware that not all FDR mediators are funded to provide free mediation to eligible people, so you’ll need to look for those with an "F" next to their name. If you aren’t eligible for funding, then you won’t have to factor this into your search for a suitable FDR mediator.

Choosing an FDR mediator is a bit like choosing a lawyer – they will vary in personality, fees and how they help people reach agreement. So it’s worth speaking to more than one before you settle on a particular FDR mediator.

Once you’ve settled on one, they will ask you for the details of the other person or people in the dispute and contact them.

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What will happen if one of us is willing to go to mediation through FDR but the other isn’t interested?

Obviously it’s going to be impossible to mediate between two parties when only one of you shows up. You should still find yourself an FDR mediator, and tell them of the situation when they do their assessment of your case. It’s likely they will give you an exemption form, which you can present to the Family Court if you decide to progress to applying to the Court for a resolution. More about this is on our Care of children disputes -  going to court page.

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I have found an FDR mediator I want to work with, but my ex-partner prefers a different one. What should we do?

You both need to work with the same FDR mediator in order for it to be effective.

If the two preferred providers happen to be contracted to the same supplier, they will probably decide together which provider you should both work with.

Otherwise, you may be exempted from FDR (if you end up apply to the Family Court for a parenting order) on the grounds that you can’t participate effectively.

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I left my husband and took the kids with me because he’d hit me. I don’t want to do any mediation!

If you feel that you or the children are not safe you should call the Police on 111 and get in touch with your family lawyer or a support person (e.g. from Women’s Refuge or SHINE).

Your family lawyer have your case referred to the Family Court urgently i.e. “without-notice” for a protection order and / or urgent hearing over the parenting arrangements.
 
This means you won’t have to go through FDR first, and your case will be considered by the Judge within 24 hours of receiving your application. It also means you can have a lawyer represent you in court.

The assessment of risk to you or your children can also be done by an FDR mediator, if you have already approached them.
 
You can choose to file your own application in the Family Court and represent yourself. But if you want to have legal representation and can’t afford a lawyer you may be eligible for legal aid.

If your lawyer has filed an application relating to the domestic violence and another relating to the day-to-day care of your children, the domestic violence application will be looked at first.

Read more about how the how the in-court process works.

For other examples where it’s appropriate to apply to the Family Court without first having completed PTS and FDR, see our Care of children disputes - going to court page.

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How much will Family Disputes Resolution (FDR) cost me?

If you’re eligible for funding, it will be free. If you are not eligible for funding but use a Family Dispute Resolution mediator who is government funded, the cost will be set at $897 (including GST).

Otherwise the cost will vary depending on the provider, and is split between both parties (it’s possible for one of you to be eligible for funding, while the other individual has to pay for their share of the cost). If you have to pay, the cost of FDR should be less than the cost of going to court.

When you approach an FDR mediator, they can tell you whether you are eligible for funding as well as how much it will cost you if you aren’t eligible. You can also check whether your eligibility for funding by viewing this eligibility table on the Ministry of Justice website, or by calling the Family Justice line 0800 2 AGREE (0800 224 733).

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What will happen once we can agree on our children’s day to day care?

At any stage during PTS or FDR you can exit from the process if you come to an agreement about the care of your children. It’s a good idea to put the agreement in writing, and if you have been in FDR mediation the mediator can do this for you.

You can choose to formalise the agreement – there is a court fee involved, but this will make it enforceable in court.

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Where can I find out more about assisted resolution of care-of-children disputes?

You can get information from: