There are many ways to resolve family law issues or disputes that do not involve commencing court proceedings; which can be costly and more stressful. These options are known as "alternative dispute resolution" and include informal negotiation, mediation, collaboration and/or arbitration. The processes for each of these differ significantly.
For most family law matters, we recommend some form of alternative dispute resolution as a starting point to resolve a dispute. The rules of the Family Court, and also the best practice guidelines set by the Family Law Section of the Law Council of Australia, require lawyers practising family law to attempt to settle family law disputes by negotiation before litigation.
Additionally, changes to the Family Law Act made several years ago, require parties to a parenting dispute to first mediate before they approach the Family Law Courts, except where there are circumstances of family violence and urgency or risk to a child, a party or a third party.
An experienced family lawyer can guide and advise you on the most suitable form of alternative dispute resolution for your circumstances.
Common forms of ADR include:
Negotiation means a voluntary and usually informal process, where both parties identify issues of concern and explore options to resolve those issues. Negotiations can be undertaken by telephone, in person, or in a joint conference room, sometimes described as a "round-table" conference. Alternatively, negotiations may be undertaken by the parties exchanging correspondence setting out or attaching proposed Orders.
Mediation is a private process where a neutral third person, a mediator, helps the parties discuss issues, set a common agenda to resolve those issues and facilitate discussions to resolve the dispute.
At court, a Registrar or Judge may make orders that the parties attend a mediation conference or judicial mediation. In this circumstance, although the parties are required to attend mediation, if the matter cannot be resolved by agreement between the parties then the matter returns to court and proceeds to a hearing.
Arbitration is a private process where parties agree to have a qualified, experienced independent person (the arbitrator) make a decision about the dispute (or part of the dispute) after reviewing evidence and hearing arguments from both parties.
Arbitration is different from mediation because, unlike a mediator, an arbitrator has authority to make a decision about the dispute.
Compared to traditional trials (hearings), arbitration can usually be handled more quickly and is less formal. Arbitration is, however, not used frequently in family law disputes, though it remains an option in some circumstances.
Collaborative Law is an out-of-court settlement process where parties and their lawyers try to reach an agreement together about the issues in dispute. Collaborative dispute resolution differs from other dispute resolution models because the parties and their lawyers all agree and sign a binding contract to resolve the matter using a form of open negotiation.
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