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Information about Care and Protection mediation

Legal Aid NSW
Family Dispute Resolution
PO Box K847
Haymarket NSW 1238
Organiser:
Phone: 02 9219   Fax: 02 9219 5542

What is the aim of a Care & Protection Mediation?

Care and Protection Mediations are a method of assisting people to reach agreement about what arrangements will be put in place for a child or young person who has been the subject of Care and Protection proceedings, without the need for either court proceedings or for decisions to be made by a court.

Who will be at a Care & Protection Mediation?

A lot of different people might come to a Care & Protection Mediation. 

The following who might be parties to the dispute

  • An independent person called the Mediator who is trained to conduct the meeting
  • The child or young person(s) parent/s
  • The child or young person(s) guardian/s
  • The child or young person(s) carer/s
  • The child or young person
  • A person with a sufficient interest in the welfare of the child or young person (which could include a family friend, a member of the child's extended family or kin, a teacher or other such person with a significant relationship with the child or young person)
  • A person who would be significantly impacted by decisions regarding the child or young person
  • The child or young person(s) case worker
  • A case worker or manager from Family & Community Services (this could be the same person as the children's case worker)
  • A Children's Legal Representative.

Who else might be there?

  • Support person(s) for any of the parties – this could be a friend, family member, or a professional support person (such as a counsellor).
  • An interpreter.
  • Legal Representatives representing one or more of the parties.

All persons present at the Mediation regardless of their role are bound by the confidentiality of the Mediation and will be required to sign a Confidentiality Agreement.

The Mediation Process

The Mediation has three stages:

1.    Intake:

A Mediation Organiser will assess if it is safe and suitable for a Mediation to take place. The Mediation Organiser is the person who sets up the Mediation, they are not the Mediator.

At this stage the Mediation Organiser will contact the parties or their legal representatives to find out information about:

  • The child or young person;
  • What is the issue in dispute and the various proposals for change ;
  • Who might need to participate in the Mediation – and if all those people agree to do so;
  • Dates and times when everyone might be able to participate in the Mediation; and
  • If everyone feels safe to attend a Mediation.   

If the Mediation is going ahead the Mediation Organiser will:

  • Arrange dates for the Preliminary Sessions and Joint Mediation to take place;
  • Ask for a Children's Legal Representative  to be arranged who will represent the child or young person; and
  • Arrange for a Mediator to be appointed. 

2.    Preliminary Sessions:

This is the first stage of the Mediation and involves individual sessions between the Mediator and the parties. These sessions are confidential.  

At this stage the Mediator might:

  • Call each party and find out what things they would like to discuss at the Joint Mediation – if legally represented, their legal representative can participate in these sessions.
  • Speak with the Children's Legal Representative who is representing the child or young person and if appropriate speak with the child or young person with their legal representative present.

After this Preliminary Session the Mediator might decide that the Mediation should not go ahead. They might also decide that there is a need for a delay to allow one or more of the parties to arrange legal representation. They might decide that there is a need for some more information before the Mediation can go ahead.

After this stage arrangements will be made for the Joint Mediation.

3.    Joint Mediation:

At this stage all the parties will get together to discuss the issues and to try and reach an agreement. The Mediator will facilitate the discussion and may conduct individual sessions with parties during the Mediation.

If the parties can reach an agreement then that agreement will be typed up into a document that can be lodged with the Children's Court. 

Children will only attend at this session if it is considered appropriate by the Mediator and the Children's Legal Representative.

Roles of the key participants

Parties

Parties to the Mediation will need to:

  • Genuinely consider all options for resolving the dispute, keeping in mind arrangements which are in the best interests of the child or young person
  • Listen to and discuss the views of others
  • State their point of view as best they can
  • Actively participate as best as they can
  • Cooperate with the Mediator and follow the Mediation process; and
  • Sign a Confidentiality Agreement, and keep what is said and done at the Mediation as private and confidential.

The Children's Legal Representative

The Children's Legal Representatives role is to ensure the views of and/or the best interests of the children is represented at the Mediation. The Children's Legal Representative's role might include:

  • Meeting with the child (if appropriate) to obtain their views, to explain the process and again after the Mediation to explain what happened.
  • Assist the parties to reach practical agreements in accordance with the Children and Young Persons (Care and Protection) Act 1998.
  • Help draft up any agreements reached or variations to orders agreed.  

Other Legal Representatives

  • Be familiar with their client's interests and concerns
  • Be familiar with any available material
  • Actively participate and encourage their client to participate in discussion and decision making
  • Act in a non-adversarial manner
  • Might be asked to assist in drafting any agreements reached or variations to orders agreed

The Mediator

The Mediators chair the Mediation. They are independent and do not act for any of the parties. The Mediator/s will:

  • Let everyone know the purpose of the Mediation and explain the process;
  • Explain the rules of the Mediation and remind parties of their agreement to comply with the rules if and when the need arises;
  • Assist in discussions and help identify issues and ways to resolve disputes; and
  • Confirm any agreement reached or further actions agreed to and close the Mediation.

The Mediator may:

  • Suggest that there be breaks in the Mediation, or individual sessions with each party and the Mediator.
  • End the Mediation if there is a risk to one of the parties, or it is not appropriate to continue the Mediation.

Roles of Support Persons

Parties may ask for a support person (other than a legal representative) to attend at the Mediation. This person could be a family member or friend, or a professional support person (such as a social worker).

It is not the role of the support person to make decisions for the person they are supporting or to advocate on their behalf.

Support person are present only if the Mediator thinks it is appropriate and can be asked to leave by the Mediator at any time.