Alternative Dispute Resolution (ADR) in Family Law Proceedings

Alternative Dispute Resolution (ADR) in Family Law proceedings

Alternative Dispute Resolution is the process of resolving disputes between parties. The different types of dispute resolution include:

Family Dispute Resolution (FDR)

Family Dispute Resolution (FDR) is special type of mediation to help separating families to come to their own agreements without going to court.

FDR is a non-judicial process where an FDR practitioner assists separating couples to resolve some or all of their disputes. An FDR practitioner is independent of all parties involved in the matter.

The FDR practitioner must first consider whether your matter can be appropriately dealt with through FDR. Things that will be considered include whether or not there is a history of family violence, the safety of each party, the psychological and physical health of each party and the history or risk of child abuse.

At FDR both parties are able to talk about their positions towards a settlement, you and your lawyer can both attend the conference and a separate lawyer, an Independent Childrens Lawyer (ICL) can also be there to represent your children if required.

If you or your former partner have applied for a Legal Aid grant to go to court, Legal Aid may ask you to attend an FDR conference first.

There are certain confidentiality and disclosure requirements involved in the FDR process.

If you or the other party requests that the FDR process be terminated or your lawyer thinks it is no longer appropriate, the process can be stopped at any time.

Collaborative law

The collaborative law process is a form of Alternate Dispute Resolution which puts you in control of your family law matter. Collaboration is a great option if you believe that you and your partner are able to cooperate and negotiate on amicable terms during your family law dispute. Collaboration can be used for both parenting and property matters.

During collaboration you will partake in ongoing correspondence and a series of meetings with your former partner and your respective lawyers. During these negotiations with the help of your lawyers, you will identify and evaluate what is important to both parties, the questions you need to answer regarding the separation, the options available to you and finally negotiate your way to an agreement.

If for some reason you do not reach an agreement, you and your former partner have the option of filing an application with the Family Court. However, if you chose to do so, the lawyers who assisted you with the collaboration will not be able to act for you in any litigation.

Conciliation Conference

A Conciliation Conference is a step in the court process if you or your former partner have commenced proceedings in the Family Court. A Conciliation Conference is conducted by a Registrar of the Court, who will try to assist you to reach an agreement on the issues in dispute between you and your former partner, whether financial, parenting or both. You will be expected to make a genuine attempt to resolve your matter at the Conciliation Conference, and if you do, this will avoid the need for further court events.

You will be required to comply with any court directions made for the preparation of your matter for the Conciliation Conference, including exchanging documents with your former partner, and filing relevant court documents.

If you fail to reach a final agreement at the Conciliation Conference, the Registrar will make procedural orders about what is to happen next in your court proceedings.

Mediation

Mediation is a dispute resolution process where a mediator (an independent third party trained in helping parties to reach an agreement) facilitates communication between you and your former partner in the hope of reaching an agreement. You can attend mediation with or without a lawyer.

During a family law mediation, you and your former partner (and your lawyers, if attending) will discuss both parties’ wishes and try to come to an agreement that suits both parties and any children involved. Depending on the type of mediation, you can discuss all aspects of your dispute, including property settlement and arrangements for the children, as well as other issues which you might not normally bring up in court, for example who gets to keep the cat, the children’s time with their friends or the baby’s feeding and sleeping routines.

Unlike a Judge or Registrar at court, the mediator is not able to impose a decision on you or your former partner. Mediation is about coming to an agreement together.

The main advantages of mediation are that it is usually considerably less expensive than ongoing litigation and is quicker and less stressful than court proceedings.

Mediation is confidential, and if no agreement is reached, any information disclosed in mediation cannot be used in later court proceedings.

If you and your former partner reach an agreement, your lawyers can draft Consent Orders based on the mediation agreement and, once finalised, these Consent Orders will be sent to the court. The court will then make the Consent Orders, which are legally binding and enforceable.

Arbitration

Arbitration is another dispute resolution pathway. Arbitration may be suitable for you if you and your former partner have been unable to reach a decision through other pathways such as mediation or negotiation.

Similar to the court process, both parties will present evidence to the arbitrator (often a senior legal practitioner or former judge) and then the arbitrator will make a decision based on that evidence.

An arbitration can be about one or more of the issues in dispute and does not have to cover all aspects of the dispute between you and your former partner.

Matters which can be heard by an Arbitrator include property and financial matters. Parenting issues cannot be dealt with by arbitration.

There are many positive aspects of arbitration including that it is generally quicker and much less expensive than litigation, the parties have a choice of arbitrator, it is confidential and there is control over the level of formality.

A decision made by an arbitrator has as much legal authority as a court order.

Negotiation

Negotiation can occur directly between parties, or through your respective solicitors.

Direct negotiation between you and your partner can work where you are able to communicate directly with each other in an amicable way.

Negotiations through solicitors are mostly conducted by correspondence, but you and your former partner and your solicitors can also choose to meet face to face for a settlement or round table conference.

Settle by Sunday – fast-tracked family law dispute resolution

‘Settle by Sunday‘ is a bespoke service provided by FGD.

It is a robust and intensive settlement negotiation that occurs over a short period of time (like a weekend), taking out conflict and delay to help you reach a resolution. The concept is simple – you and your former partner base yourselves at the same location, along with the people you need to help you negotiate your settlement, like an accountant or Child and Family Specialist. The goal is to settle your matter as soon as possible.

The exact process can be personalised by you. We offer a variety of models that we can tailor to your needs and/or budget, including:

Collaboration;
Lawyer-assisted mediation;
Family dispute resolution; or
Self-represented mediation.

The agreement you reach will be formalised in a way that works for you, whether that is an informal parenting agreement or parenting plan, Binding Financial Agreement or Consent Orders.

Litigation (going to court)

In most situations, going to court should be viewed as a last resort. Litigation through the initiation of proceedings with the court is a costly process that can take a number of years. From the date you initiate proceedings, it can be 1-2 years before the court is able to list you for a final hearing. After the Final Hearing, there may be a further delay before you receive a decision from the Judge, and once you receive that decision, there is a risk of an appeal. This process is expensive and is often acrimonious which causes a great deal of stress for all parties involved, including any children of the relationship.

However, if you do find yourself in a situation where proceedings are commenced, FGD will work with you to tailor a strategy to your case. Our team are experienced litigators and regularly appear in property settlement, parenting and estate matters in the Federal Circuit Court of Australia, the Family Court of Australia and the Equity Division of the Supreme Court of NSW.