Frequently Asked Questions About Family Dispute Resolution (FDR)
- Who conducts Property FDR?
- Who can use Property FDR?
- What are the advantages of Property FDR?
- What is the role of the mediator?
- Can I force another person to attend FDR?
- Do I need a lawyer to arrange FDR?
- Is there any paperwork or preparation before the FDR?
- Do I need a lawyer to come with me to FDR?
- Who can I bring with me to the FDR?
- How long does a typical FDR take?
- How much does a Property FDR cost?
- Who pays for the FDR?
- What happens if the FDR takes longer than expected?
- What happens if the FDR does not lead to a settlement?
- Is the result of FDR binding?
- What matters can be brought to FDR?
- Where does FDR take place?
- For any other questions or concerns, use the Contact Form
Property FDR is conducted by an accredited Family Dispute Resolution Practitioner (FDRP) who acts as a mediator between the parties.
Property FDR is open to any two parties who are or have been in a personal relationship (married or de facto) and that relationship is ending or has ended, and they have a disagreement about the splitting of their property.
The Property FDR process typically costs far less than a court hearing. There may be 2 to 4 2½-hour sessions, costing from $1500 each, compared with a hearing in the Federal Circuit Court or the Family Court where costs can be as much as $40,000 per day. FDR can usually be arranged to take place within weeks, whereas there can be a delay of more than a year to get a matter to court.
The FDR process is designed to allow the parties in dispute to discuss the issues involved with the FDRP helping them to hopefully be able to negotiate an outcome that is acceptable to both.
The FDRP’s role is to facilitate this process. The FDRP does not act as a judge or adjudicator and will not take sides, or decide which party is right or wrong.
In FDR, both parties are in control of the outcome, while the result of a court or tribunal hearing is determined by the judge. Even the successful party in a court case can end up still having to pay substantial legal fees.
A settlement will only result if both parties freely agree.
The FDRP is an independent professional (an accredited Family Dispute Resolution Practitioner) who uses his skills to assist two disputing parties to negotiate an outcome that is acceptable to both parties.
The FDRP is in charge of the conduct of the Property FDR and can direct the behaviour of the parties.
The FDRP cannot give legal, financial, psychological or spiritual advice to the parties.
(see Rules of Mediation)
No, you can’t. The FDR process can only work if both sides in a dispute agree to participate. There may also be impediments to FDR proceeding, such as intervention orders.
Property FDR is usually arranged by lawyers acting for one or the other of the parties in dispute, but you can initiate the FDR process yourself. If either party has not had proper legal advice, usually from a family lawyer, the FDRP will insist that they seek such expert legal advice before the Property FDR proceeds. This is important, because any agreement reached and signed by the parties can be binding and be made the subject of a consent order in a court.
Property FDR is carried out under the provisions of Australian family law. Before the actual FDR can begin, the FDRP will spend time with each of the parties to assess the suitability of Property FDR and the capacity of both parties to participate in the process. If FDR is to proceed, both parties will sign a Property FDR Agreement (see sample), which they should discuss with their respective lawyers before signing.
The parties must seek any relevant advice from lawyers, accountants, financial or other advisers, in order to be fully prepared for the mediation.
If FDR is to proceed, the FDRP will ask both parties to independently complete a Property Checklist.
No. It is your choice whether you have someone attend the FDR with you. However, both sides have to agree to allow the other to bring a lawyer or other person along to the FDR. If both parties bring their lawyers, the lawyers can help draft a settlement agreement at the end of the FDR.
The FDR process is designed to allow the two parties to discuss matters openly with each other and the FDRP will discourage any lawyers present from acting as advocates for their clients.
Apart from a lawyer, you can bring another adviser, a family member or a trusted friend. However, you need the agreement of the other party to have anyone with you and you can agree or not to the other party having someone with them. If you do not agree for the other party to have someone accompany them to the FDR, they may likewise not agree to you bringing someone along. It is common for disputing parties to each have one or more people with them to help them at the FDR.
Anyone who comes with you to the FDR will have to sign a Confidentiality Agreement before they will be allowed to attend.
Given the nature of the disputes coming to Property FDR, the process is usually conducted over a number of sessions of around 2½ hours each, commonly separated by a week or two. Most property FDRs require 2 to 4 sessions. The intervals between sessions allow the parties to gather more information such as valuations and quotes, and to seek more detailed legal and/or financial/tax advice as needed.
This can depend on:
- the complexity of the issues
- the value of the property involved
- where the FDR is to take place
- how many sessions are needed
- possible out-of-pocket expenses for the FDRP, such as travel and accommodation for rural centres and costs of a suitable venue.
Each FDR session costs from around $1500 for a 2½-hour session plus incidental costs such as venue hire, travel, etc., if required. There will also usually be a fee of around $150 for each of the hour-long assessment sessions the FDRP will hold with each party. By comparison, a court hearing can cost each party as much as $20,000 per day.
There may also be costs for the time the FDRP necessarily spends reading documents relating to the parties’ property.
The parties generally share the cost of the Property FDR equally, paying 50% each. However, the parties may decide on any proportional split they wish
Payment for the assessment sessions is paid on invoice, either directly by the parties or through their respective lawyers. Payment for the first Property FDR session is made before the FDR commences and then payment for each subsequent session is paid before that session.
Although the plan is for each session to take around 2½ hours, there will be a clause in the Property FDR Agreement which sets out the hourly rate for the FDR session to continue beyond the time set aside, if the session extends unreasonably long beyond that time. Payment of this hourly rate will be shared by the parties.
Although it is normal for Property FDR to be conducted over 2 – 4 sessions, each of around 2½ hours, more sessions may be needed and the agreed fee will be payable for each of those.
If the parties cannot agree on an outcome that is acceptable to both, the FDR may be brought to an end without a settlement agreement. Both parties are then free to pursue other avenues, such as court or tribunal proceedings.
If the FDRP thinks that a settlement may be possible if the FDR is adjourned, allowing the parties to have more time to consider their options, he may adjourn the dispute for further FDR on a later date.
Either party may bring the FDR to an end with the consent of the FDRP. The FDRP may also bring the FDR to an end if he thinks there is no longer a possibility of settlement.
There is no refund of the FDR fee if the parties fail to reach a settlement. The FDRP will be committed to do everything he can to help the parties reach a settlement.
Yes. If the Property FDR is successful, the parties will, with the assistance of their respective layers, draw up and sign a Property Settlement, which is binding and which may be used as the basis for a court consent order.
Property FDR is designed to deal with property of two people who are or were in a personal relationship. It deals with all assets and debts/liabilities and all income and expenses of the two people. It may also, in some cases, deal with spousal maintenance. It does not deal with parenting arrangements or child support.
Property FDR is usually conducted in a large room with a table at which the parties can sit opposite each other with ample room for their documents. The FDRP will sit at the end. There will also be room at the table for any support people, such as lawyers.
The venue may be at the offices of the solicitor acting for one of the parties (if both parties agree to this) or in a neutral place. The venue may need to be hired for the occasion.
The venue used will have at least one extra meeting room so that the parties may have private discussions away from each other.
If you have a question or concern that is not adequately addressed above, please complete the Contact Form.