What do family lawyers really think about Family Dispute Resolution?

By Susan Hamilton-Green


Family Dispute Resolution (FDR) has been compulsory prior to issuing court proceedings in parenting matters for some time now, and has become an essential consideration for family lawyers in supporting their clients to resolve disputes. As a Family Dispute Resolution Practitioner (FDRP) and family lawyer, I understand the benefits of FDR and how to match the needs of a particular family with the most appropriate form of FDR process. But for some time I have wondered how other family lawyers are using this tool and what their experiences are regarding FDR.

In 2015 I invited family lawyers throughout Melbourne and regional Victoria to explore these issues with me. Acutely aware of the time constraints for most family lawyers, I developed a 5 question survey and invited approximately 110 practitioners to participate. I received responses from 54 lawyers, many with additional comments. I obtained a good indication of the overall approach of family lawyers to FDR and what they see as significant factors when making recommendations to their clients. Some of this information surprised me. It showed that FDR is a significant aspect of advice given by family lawyers, and that they balanced many factors when advising and directing their clients to FDR.


The Questions

I designed questions to explore how significant FDR was to family lawyers, what factors they considered important when considering FDR, and why various choices were made. I sought responses regarding:

  • How often they would refer a client to FDR;
  • What features influenced their choices of FDR;
  • The purpose of their referrals to FDR;
  • Their concerns about FDR; and
  • Whether they consider different features of FDR.


The Responses

Question 1

My first question was aimed at finding out how regularly solicitors were directing their clients to FDR.

I asked “How often do you refer your clients to FDR?” and provided options between weekly, monthly or quarterly.

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The responses showed that FDR is an important and frequent consideration for most family lawyers with 47 % indicating that they made a referral to FDR on a weekly basis, and 38 % on a monthly basis.


Question 2

If FDR is an important feature of the advice given by family lawyers, I wondered what influenced the type of referrals that they made. What are the important factors that they take into account when determining the which form of FDR that they direct their clients to.

I asked “What are the features that influence your recommendations for FDR and the choices that your clients make?” and I suggested various aspects that could be considered including:

  • Availability or how quickly FDR could occur;
  • The cost of the service;
  • The location of the service;
  • Whether the service allowed for legal representation as part of the process;
  • The type of process used by the service;
  • Whether the service recommended and facilitated legal support during the process;
  • Whether the legal background of the FDRP was a relevant consideration.

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For most solicitors, there were several key features that influenced their recommendations for FDR. Major issues involved the service provider, including cost (77 %), availability (63 %) and location (56 %). For many others, their choices were influenced by the type of process offered, with the legal background of the FDRP (71 %), the ability for legal representation at the sessions (44 %), and the support for a legally supported process (38 %), being the leading considerations.

An opportunity was provided for additional features that influenced advice about FDR and these included:

  • Knowing that the mediator will be impartial and would not make value judgments;
  • Knowledge by the mediator of the relevant law;
  • The perceived competence and quality of service provided by the FDRP;
  • Confidence that there would be consideration of the power balance between the parties and their comfort levels in being able to participate in FDR;
  • The issues and complexity of the matter.

This highlights a level of complexity in the decision-making process between solicitor and client, to ensure the most appropriate option for FDR. The experience and qualifications of the FDRP stand out as important, as well as the ability for legal support either surrounding or directly as part of the FDR process.

Family lawyers appear to be seeking a flexible service to reflect their needs and those of their clients. They want a convenient, timely and cost effective process, but also value the need for legal support and assistance depending on their client’s needs.


Question 3

The goals underlying the choice of FDR.

I was also curious as to what the motivation was behind referrals for FDR made by legal practitioners. Do they tend to make most of their referrals in parenting matters where it is compulsory, or are they also using FDR for financial matters? Are they encouraging interim agreements and the narrowing of issues, or do they encourage the resolution of all issues to avoid legal costs and the consequences of long delays in final hearings? Do they tell their clients to go through the motions to get a certificate and go down the court path, or have they other reasons for referrals to FDR?

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The results show that most solicitors have a number of goals in mind when referring clients to FDR. This again demonstrates the complexity involved in giving advice in this area, and the need to balance contrasting requirements.

The majority of responses noted several key purposes for referral to FDR:

  • To resolve parenting disputes (77 %)
  • To minimise legal costs (66 %)
  • To reduce issues requiring court determination (62 %)
  • To explore interim parenting agreements (58 %)
  • To obtain a certificate to allow the matter to proceed to court (57 %)

One lawyer noted that they refer to FDR as the most cost effective and amicable way to reach a mutual agreement, but that adequate legal advice must be obtained before participating in FDR particularly where they are not to be legally represented during the process. Another commented that an important purpose for them in discussing FDR as an option, is to preserve the relationship between the parties, particularly where children are involved, as opposed to the adversarial nature of court proceedings. This is akin to another who noted that they refer to FDR as an opportunity for resolution in a less adversarial environment.

It was not surprising that most family law solicitors acknowledged the advantages for clients in resolving matters through FDR, particularly in parenting matters. The main factors noted were reducing issues in dispute, and minimising legal costs. This has the advantages of allowing for clarification of the matters that can be agreed, and highlighting those that necessitate legal determination and justify the investment associated with litigation.


Question 4

Why referrals are made to different types of FDR

I next sought to explore the aspects of FDR that may need to be taken into account when determining either what form of FDR would be the most suitable, or what supports might be appropriate for a particular client. It is common for me to hear from other family lawyers complaints regarding the complexity of a process and the length of time it can take for a family to proceed through the required stages. There are also issues that are raised regarding the nature of legal support encouraged by services, their ability to facilitate supports from other professionals, and the nature of the agreements that result from a service. I was keen to find out to what extent any of these factors made a significant impression on the support of lawyers for FDR.

I asked them “What concerns do you have when referring clients to FDR?” and suggested the following options that may be relevant:

  • The bureaucratic nature of the process and the steps required prior to issues being addressed;
  • The length of time the process takes and the impact of this on the likely legal consequences;
  • The lack of appreciation by the mediator of the legal consequence of agreements reached;
  • The ability to engage the other party to the dispute;
  • A lack of integration with other professionals or support services involved with clients;
  • Lack of clarity in written documentation of agreements reached;
  • Flexibility to reflect clients individual needs in relation to process and/or outcome;
  • Any other factor.

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The major concern with FDR was the length of time the process takes and the impact of this on the likely legal consequences. This was noted as important in 68 % of the responses received. Family Lawyers presented as very conscious of the need to balance the advantages for the client in trying to sort out their own issues in FDR, with the long term consequences should there be lengthy delays in achieving a realistic outcome from this process.

Other concerns with the FDR process were selected:

  • The ability to engage the other party to the dispute (44 %), and
  • The bureaucratic nature of the process and the steps required prior to the issues being addressed (42 %)
  • The lack of appreciation by the mediator of the legal consequences of agreements reached (30 %)
  • The lack of clarity in written documentation of agreements reached (30 %)
  • A lack of integration with other professionals or support services involved with clients (15 %).

Again, there was an opportunity for additional comments and the following concerns were noted:

  • Doubts about the adequacy of FDR skills in some types of mediation including the Family Relationship Centres;
  • Concerns that some FDR processes that do not allow lawyer participation in the FDR conference;
  • That the complexity of a matter must reflect the amount of care required in making the most appropriate referral;
  • The importance of clients being able to access legal advice during the process so that they were aware of the legal consequences of decisions being made;
  • The lack of legal representation;
  • The competence of the FDRP and therefore the quality of the service being provided;
  • Particularly in financial matters, that the agreements reached at non legally assisted FDR do not reflect the type of orders that would be made in court to formalize a settlement;
  • The lack of authority in the mediation process and with the mediators;
  • The ability for one party who is not genuine in seeking a resolution, to use the process to delay an outcome and disadvantage the other party who cannot take the matter to court-particularly a problem where one parent is not spending time with their child;
  • The extent to which the mediator can reality and thereby challenge the parties’ expectations;
  • Failure of many parties to follow the agreement reached following FDR because it is not enforceable;
  • The uncertainty of the outcome, with the result that matters may still need to proceed to litigation;
  • The ability of a service to adequately deal with family violence and other protective concerns.

Some of these factors are present in all FDR including the ability to engage the other party. Some relate to how FDR is delivered, such as the length the process takes, the bureaucratic nature of the process, and the steps required to get to the mediation session. Others relate to the type of FDR provided, where a legally qualified FDRP would be more likely to appreciate the legal consequences of a delay or particular outcome, and be able to ensure clarity in the written agreements reached. One lawyer pointed out that any of these factors can be present, but each case requires a balancing of those that are relevant to develop the most appropriate action plan.

It is interesting that some of the additional comments touch on notions of capacity of the parties in FDR. Considerations of family violence, protective issues, and the ability to genuinely participate in the process were noted as requiring careful consideration in the process of referral to FDR. This appears to raise concerns for the need for legal support or representation in this process.


Question 5

Additional features

Finally I asked whether any of the additional features often suggested as part of FDR were considered as significant. I asked whether they would consider recommendations that would enhance child focus or child inclusive practice, or whether the option for a review is important.

I sought an indication regarding Child Enhanced Process (use of a Child Consultant to provide age appropriate information) and discovered that roughly half (49%) were very likely to utilise this feature, and that a significant proportion (38%) would consider it.

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I then asked about Child Inclusive Practice (use of a Child Consultant to provide an independent report as to the children’s wishes) and discovered that more than half (56%) were very likely to recommend this aspect of FDR, and approximately one third (27%) would consider it.

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Finally I sought their view regarding the opportunity for review after a trial period or agreed interval. A very significant proportion (65%) valued this as an option, and about a quarter (24%) would consider it.

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Additional comments included:

  • That the involvement of a consultant would depend also on the financial resources of the parties, the complexity of the matter, and the seriousness of any issues raised;
  • That any of these options may be considered but this would have to be when appropriate for the circumstances of each particular case;
  • That when considering these options, issues of influence and alienation be adequately addressed, as well as the appropriate age and capacity of children to participate be considered.



The results of this survey show that most family lawyers consider the issues associated with FDR on a weekly or monthly basis. The

quality of service, as well as value and convenience, have been highlighted as the most significant considerations for family law practitioners when recommending FDR.

When assessing the most appropriate form of FDR, many are influenced by the legal background of the FDRP, ongoing legal support for participants, and the option for legal representation in FDR.

The most significant concern raised by practitioners is the length of time that the process takes and the impact of this on the legal issues. They seek a process that is efficient, can facilitate the engagement of the other party, is sensitive to their client’s needs, and provides clear outcomes.

Family lawyers have demonstrated that they also prefer FDR where they can be confident of the quality of the service and the skills of the FDRP. In general they have indicated that they support a process that has the flexibility to acknowledge and respond to the individual needs of their clients.



I was surprised as the level of sophistication demonstrated by the responses regarding the knowledge and application of key aspects of FDR in advising their clients. The results indicate that many value the benefits of FDR and make a genuine effort to match this to the needs of their clients.

The responses to question 4 regarding concerns for referrals to FDR shows that there is still considerable misunderstanding by family lawyers about what happens in FDR, and how different types of this process do meet a number of the concerns expressed. There is clearly a need for FDRPs to work with the legal profession to enhance their knowledge of the ways that issues such as capacity, and family violence are managed. There is a great opportunity to work with lawyers to establish strong strategic alliances, where confident and appropriate referrals can be made.

There is also an opportunity here for FDRPs to understand and address the concerns of family law practitioners. The length of time that it can take to move through a process, the availability of legal support, and the nature of the agreements that are reached in FDR all appear to be areas where there can be improvement. Again a dialogue between lawyers and FDRPs may be very useful to clarify how agreements could better provide a transition between FDR and the legal process, and other options such as different streams for families where time is of the essence as opposed to those where this is not such an issue, could be implemented.

The area of marketing presents as the most vital for FDRPs and FDR services. Although family lawyers appear well informed about FDR on some levels, they also present as requiring further clarification about the journey of their clients through the process. For many it appears that when referring to FDR their clients disappear for a period, reappearing some time later, unable to reliably explain what an agreement means and how this has been achieved. Perhaps a more collaborative approach, better partnerships between FDRPs and lawyers, would result in mutual support both the input of both and thereby benefit all!


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