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Court annexed mediation

9.27Section 19A of the Family Law Act 1975 empowered potential litigants to apply to the Family Court for the appointment of a “family and child mediator”.950  Section 19AA allows a person to make such a request direct to a family and child mediator.  The court is under an obligation to provide this assistance if it has such a service.  Section 19B gave power to the Family Court to refer proceedings to a mediator with the consent of the parties.  The court has an obligation to advise the parties to seek the help of a family and child mediator if it considers that this may help the parties to resolve their dispute.951  The court may adjourn the proceedings to enable attendance at mediation.952

9.28Mediation was first made available in 1992, and is now available in five cities.953  Mediation  may now be conducted by a single mediator.954  Mediators are drawn from the ranks of those with either a legal or social science background.955  

Duty to provide information and advice

9.29Both lawyers and judges are placed under a duty to consider the possibility of a reconciliation.956  They are also required to consider whether or not to advise persons who are considering instituting proceedings about the primary dispute resolution methods that could be used to resolve any matter in dispute.957  There is a similar requirement in respect of counselling for the parties and their children to adjust to the consequences of marital breakdown,958 and counselling to adjust to the consequences of Part VII orders.959

9.30The lawyer for the applicant  must provide a court approved document which sets out particulars of any mediation and arbitration facilities available at the Court or elsewhere.960  The lawyer for the applicant must also serve it on the respondent.961  If the parties are not represented, court staff are under a similar duty.962  Lawyers may refer clients directly to the mediation service.

Information sessions

9.31If mediation is requested by one of the parties, then the Director of Family Mediation of the Family Court may direct both parties to attend an

950 The Courts (Mediation and Arbitration) Act 1991 added Part IIIA to the Family Law Act 1975 and this was further amended in the 1995 Act.

951 Section 19BA(1) as inserted by section 17 of the Family Law Reform Act 1995.

952  Section 19BA(2).

953 Melbourne, Dandenong, Adelaide, Brisbane and Sydney.

954 Order 25A(2)(a), as inserted in 1996.

955 Ibid at paragraph 11.17.

956 Ibid at sections 14 and 14CD.

957 Ibid at sections 14C and 14F and G.

958  Ibid at section 16C(3).

959 Section 62B(3).

960 Order 25A, rules 21(2) and (4).  This is a document referred to in section 19J(2) which must be given to the parties on request to the appropriate officer of the Family Court, or when persons propose to institute proceedings.

961 Order 25A, rule 21(4).

962 Section 19 J(2), Family Law Rules, Order 25 A, rule 21(3).

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