Alternative Dispute Resolution

There are many ways to resolve family law issues or disputes that do not involve commencing Court proceedings. These options are all described 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.

Additionally, changes to the Family Law Act made several years ago now require parties to a parenting dispute to first mediate before they approach the Family Law Courts, except where there are circumstances of urgency or risk to a child.

An experienced family lawyer can guide and advise you on the most suitable form of alternative dispute resolution for your circumstances.

FAQs

Common forms of ADR include

  • Negotiation 
  • Mediation
  • Court-ordered mediation
  • Arbitration
  • Collaborative

Negotiation means voluntary and, usually informal, process where parties identify issues of concern, explore options to resolve the issues, and make and/or exchanged proposed solutions to the issues raised. Negotiations can be undertaken by telephone, in person, or in a joint conference room, sometimes described as a "round-table" conference.

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. Mediation is a voluntary process, and the Mediator has no decision-making power. The Mediator's role is to provide parties with a structure that may help them to reach their own agreement Parties may attend mediation either with, or without, a lawyer present. There are advantages and disadvantages to each of these options.

Many parties are now ordered by Judges or the Family Law Courts to attend a 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 is decided by a Judge.

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, arbitration can usually be completed 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 inclusive negotiation. The process typically involves "five-way meetings" with the parties, their lawyers and other professionals such as a communication coach, neutral financial specialist, child specialists, or other experts. The parties and the experts then meet together to discuss and reach agreement about the steps that need to be taken to resolve the issues in dispute. In this way, parties "collaborate" to resolve the dispute.

If the dispute cannot be resolved entirely through this process, the lawyers acting for each party must withdraw, and the parties must engage new lawyers to represent them in litigation. This aspect of collaborative law means that all parties, including the lawyers involved, are genuinely committed to a negotiated outcome. The Collaborative model is well suited to some family law matters, but not all.