FDR Mediation Terms and Conditions
1 Introduction
1.1 These Terms and Conditions govern the delivery of family dispute resolution services administered by the New Zealand Family Dispute Resolution Centre (FDR Centre).
2 Meaning of words
2.1 Unless the context requires otherwise, in these Terms and Conditions:
(a) Family dispute means a dispute that will require an application described in section 46F(1) of the Care of Children Act 2004 if a party to the dispute wants a court to resolve it.
(b) Family dispute resolution (FDR), FDR mediation means a family dispute resolution process where an independent mediator assists parties to a family dispute to reach an agreement that best serves the welfare and the best interests of all children involved, without going to court.
(c) Mediator means a person appointed by an approved dispute resolution organisation who is qualified and competent to provide services intended to resolve family disputes.
(d) We, our, us means the FDR Centre.
(e) Party means a participant in the FDR mediation process (for example, a father, mother, grandparent, or guardian).
(f) An Outcome Form means an Outcomes of Family Dispute Resolution Form (also known as a section 12 (S12) Form or sometimes an S12 Exemption Certificate as the Outcome Form complies with section 12 of the Family Dispute Resolution Act 2013).
(g) Joint mediation session means a meeting with the mediator where all parties are present.
2.2 Unless the context requires otherwise, in these Terms and Conditions words in the singular include the plural and words in the plural include the singular.
3 Appointment of a mediator
3.1 You are welcome to let us know if you have a preference as to which of our mediators is appointed to your case. We cannot however guarantee that any particular mediator will be appointed where the parties do not agree on the appointment or where the requested mediator is unavailable or has a conflict of interest.
3.2 Ultimately, we will appoint a mediator who we think is suitable for your circumstances and who is available to deal with the matter promptly. If you think there are justifiable doubts about the appointed mediator’s impartiality or independence, you should let us know as soon as possible – even if the FDR mediation has started. However, the decision about who to appoint as mediator is our decision. You cannot appeal this decision to the court or any other place.
4 Deciding if FDR mediation is appropriate
4.1 When your mediator is appointed, they will carry out an assessment to decide if it is appropriate to start FDR mediation for your family dispute. There is no charge for this assessment. It is also possible for your mediator to decide that it is inappropriate to continue FDR mediation once mediation has started (for example, if a party refuses to participate).
4.2 In deciding whether FDR mediation is appropriate, your mediator will consider:
(a) the requirements of section 12 of the Family Dispute Resolution Act 2013 (for example, they might decide that FDR mediation is not appropriate because one of the parties is unwilling to participate effectively in the mediation); and
(b) whether there might be another situation that exists that gives them reasonable grounds for deciding that FDR mediation is inappropriate for the parties to the family dispute.
4.3 A mediator’s decision that FDR mediation is inappropriate is final. If they make this decision, they will give you an Outcome Form that states that your dispute is inappropriate for FDR mediation, and the FDR mediation process will end.
5 Signing the Mediation Agreement
5.1 Before FDR mediation can begin, all intending parties must sign our Mediation Agreement. The Mediation Agreement may be signed in counterparts (which means that the parties sign different copies of the same document). The Mediation Agreement may be signed physically or electronically.
6 What you should do during mediation
6.1 You must cooperate in good faith with your mediator and every other party to attempt to resolve your family dispute.
6.2 You must comply without delay with your mediator’s reasonable requests to attend private or joint FDR mediation sessions or to provide information. If you do not comply with such requests, or you disrupt or delay the FDR mediation or interfere with the integrity of the FDR mediation, the mediator may decide that FDR mediation is no longer appropriate.
7 Representatives, Support Persons, and other non-parties
7.1 A Representative is someone who represents you (whether legally qualified or not). They can participate in the FDR mediation and can speak on your behalf.
7.2 A Support Person is someone who can give you reassurance and emotional support ie, a friend or family member. Subject to obtaining the prior approval of the mediator, they can attend a joint FDR mediation session, but they cannot participate in it (ie, they cannot speak on your behalf).
7.3 If you want to involve a Representative, Support Person, or any other non-party in the FDR mediation process (for example, a translator or interpreter), you must get that person to sign our Confidentiality Agreement before they can participate. If they do not sign the Confidentiality Agreement, they cannot attend any FDR mediation session.
7.4 If you wish to bring a Representative or a Support Person with you to a joint FDR mediation session, you must tell your mediator at least 3 working days before the session. A working day is a day other than Saturday, Sunday, or a public holiday). You must tell your mediator the name of the person you want to bring with you and give your mediator any other details that they require (for example, the person’s role, relationship to the parties and their contact details).
8 What your mediator can do during mediation
8.1 Your mediator can conduct the FDR mediation in any manner they think fit having regard to the purpose of FDR mediation. They will have regard for your circumstances when arranging dates and times for FDR mediation sessions. They can decide whether to speak with you separately or in joint mediation sessions. They can also decide how they will conduct some or all FDR mediation sessions ie, by phone, video conference and/or in person, or a combination of any of these.
8.2 For joint mediation sessions:
(a) Your mediator will advise the other parties if you intend to bring a Representative or a Support Person.
(b) Your mediator can decide (in their sole discretion) not to allow a Representative or Support Person to attend or limit the number of Representatives or Support Persons attending if they think attendance could unduly and/or unfairly delay or disrupt the mediation or bring into question the integrity of the process.
8.3 Your mediator will help you identify and explore any issues or concerns and assist the parties to reach an agreement that best serves the welfare and the best interests of all children involved. They cannot give legal advice and they cannot make any decisions for you.
9 Mediation that ends in agreement
9.1 If you and the other parties reach an agreement in respect of some or all of the care and contact or guardianship issues in dispute, your mediator will assist you to prepare a Parenting Plan to record that agreement. The Parenting Plan must be signed by all parties.
9.2 Your mediator will also give you an Outcome Form, and the FDR mediation process will end.
9.3 The parties must comply with any Parenting Plan or other agreement reached in good faith, and in a timely manner.
10 Disputes taking an unreasonable time to resolve
10.1 Your mediator can end the FDR mediation if they consider that your dispute is taking an unreasonable length of time to resolve. If your mediator ends the FDR mediation for this reason, they will give the parties an Outcome Form and the FDR mediation process will end. The Outcome Form will state the matters on which the parties reached, and did not reach resolution during the FDR mediation and, if court proceedings are commenced, whether, in the opinion of the mediator:
(a) a settlement conference would be likely to facilitate settlement of the matters on which the parties did not reach resolution; and/or
(b) at least one of the parties would need legal representation to participate effectively in the settlement conference.
11 Paying for mediation
11.1 The Government provides funding for all FDR mediations. If you meet the criteria for full funding, there is no charge for FDR mediation. If you do not, you are still entitled to partial funding. However, you must pay the unfunded balance of the cost of FDR mediation before the FDR mediation starts. If you want to continue with FDR mediation after the Government-funded hours have been used, you can access our private FDR mediation service.
12 Record of FDR mediation
12.1 The only record of the FDR mediation that the mediator or the FDR Centre must give to the Parties is the Outcome Form.
12.2 The parties cannot ask for any other documents or records, no matter what the purpose or what they relate to. For example, the mediator does not have to keep notes about the mediation and cannot be asked to provide those notes. The only exception to this rule is if the FDR mediation process has resulted in a written agreement between the parties such as a Parenting Plan. The parties can ask for a copy of that agreement, and if the mediator or FDR Centre has a copy, we will give it to them.
12.3 You must acknowledge that you have been given a copy of the Ministry of Justice’s privacy statement and that the mediator or the FDR Centre will disclose information necessary to record information about FDR mediation in a secure database that is managed by the Ministry of Justice.
12.4 The FDR Centre may also collect information relating to FDR Mediation for statistical or research purposes and may publish that information. The FDR Centre must not publish the information in a form that could reasonably be expected to identify any particular person, party or mediator.
13 Mediation is private and confidential
13.1 The mediator must conduct the FDR Mediation in private.
13.2 No person involved in the FDR mediation (including the parties, their Representatives and Support Persons, the mediator, and the FDR Centre) may make any audio or video recording of any part of the FDR mediation.
13.3 Any person involved in the FDR mediation (including the parties, their Representatives and Support Persons, the mediator, and the FDR Centre) must keep Confidential Information confidential and must not publish, communicate or otherwise supply (disclose) it to any non-party.
13.4 Confidential Information means all non-public materials and information that relate to the family dispute and includes:
(a) any statement, admission or document created or made for the purpose of the FDR mediation and all matters disclosed orally during the mediation sessions; and
(b) all non-public materials and information provided for FDR mediation by a party, including documents used or generated for the purpose by a Representative.
13.5 However, Confidential Information can be disclosed to the extent necessary to:
(a) protect the safety of any person;
(b) to record participation in FDR Mediation and generate Outcome Forms for the purpose of the Family Dispute Resolution Act 2013;
(c) enforce an agreed Parenting Plan;
(d) pursue a legal right;
(e) protect a party’s legal rights in relation to a third party;
(f) respond to a professional or other adviser of any of the parties after that person has signed a Confidentiality Agreement;
(g) respond to a legitimate court summons, governmental request for information or other compulsory processes; or
(h) comply with the order of a court of competent jurisdiction or any legal requirement which is binding on the party making the disclosure.
13.6 If you are disclosing Confidential Information under Rule 13.5, you must only disclose as much as is reasonably required for the purpose of the disclosure.
13.7 Any person intending to make such disclosure must, within a reasonable period of time prior to the intended disclosure, notify the FDR mediator, every other party, and the FDR Centre. This notification must include details of the disclosure and an explanation of the reason for it.
13.8 You must not use statements made during FDR mediation in any subsequent court proceedings unless required by the law to do so.
14 Exclusion of liability and indemnity
14.1 The purpose of these provisions is to give the mediator and the FDR Centre (including its agents and employees) the widest immunity from liability that the law will allow. Any reference to the FDR Centre in these Terms and Conditions includes a reference to the agents and employees of the FDR Centre.
14.2 The mediator and FDR Centre are not liable for any act done or not done in relation to the FDR mediation or these Terms and Conditions. The Parties release the mediator and the FDR Centre from all liability of any kind (including negligence, misrepresentation, breach of contract or breach of duty of any kind (including statutory, fiduciary, or equitable)). This release does not apply to the extent that the mediator or the FDR Centre has acted fraudulently.
14.3 If a claim is brought against the mediator or the FDR Centre despite clause 14.2, the parties (jointly and severally) indemnify the mediator and the FDR Centre in respect of that claim.
14.4 Words of the mediator or the FDR Centre (for example, written statements or oral comments) cannot be used in any action for defamation, libel, slander, or any similar complaint.
14.5 The mediator’s and the FDR Centre’s obligations under these Terms and Conditions end after the FDR mediation has ended (except for their ongoing obligations to keep Confidential Information confidential). After that, the mediator and the FDR Centre have no obligation to make any statement about the FDR mediation, and no party can ask the mediator or the FDR Centre to explain why an Outcome Notice was issued or give evidence in legal proceedings arising in relation to the family dispute or the FDR mediation.
