By Jenna Georgopoulos, Associate
Going to Court can be a long, expensive and stressful process. Alternative Dispute Resolution (ADR) supports separating families to resolve their disputes amicably and by agreement, while avoiding the expense, delay and stress associated with litigation. With the exception of limited circumstances, it is now a requirement for parties to participate in ADR before making an Application to the Court. Parties must make a genuine attempt in good faith to resolve their dispute outside the Court. This continues to apply both before and during your proceedings.
In family law matters, the most commonly used ADR methods include Negotiation, Mediation, Arbitration and Collaboration.
Negotiation is the first step typically undertaken in the process of dispute resolution. This process is generally informal and can be conducted over the phone, in writing or face to face, often with the assistance of legal representatives. In a “roundtable conference” type of negotiation, parties, with the assistance of their lawyers, conduct a meeting to discuss their issues and hopefully reach an agreement.
Mediation is a structured process involving an independent third party who works with you and your former spouse to help resolve your issues on an amicable basis. It is a confidential process and parties are typically represented by their respective lawyers. The mediator is to be be jointly appointed, and their fees are ordinarily to be shared by both parties.
A Conciliation Conference in family law proceedings is similar to the mediation structure, but where the independent third party is a Registrar of the Federal Circuit and Family Court of Australia who takes a more active role in intervening in the process to provide advice regarding the process of the conciliation and the merits of each of the parties’ respective matters. Ultimately, however, it is up to the parties to decide the issues in dispute and the conciliator cannot make a decision for the parties..
Arbitration is a process whereby disputing parties present arguments and evidence before a specially trained and accredited arbitrator – in many ways it is a “private” Court. The parties agree on the identity of the arbitrator (i.e., the Judge) and they equally share the costs of the arbitrator’s fees as well as those of the venue and transcription service. Just as in preparing for a Court trial, the parties file their evidence beforehand, and attend at the arbitration (i.e., the hearing) where they are respectively cross-examined, and their legal representatives make submissions on their behalf. After the arbitration, the arbitrator makes a decision and writes an award (i.e. an Order) determining the case. The award can then be registered with the Federal Circuit and Family Court of Australia.
In collaborative family law, parties and their respective legal practitioners (being lawyers formally trained in collaborative family law) work together to find a fair solution to whatever financial or child-related issues need to be addressed without involving the court. The focus in this forum is different from outcomes, but rather focusing on the interests, needs and concerns of the family. At the outset, the parties and their lawyers, and other agreed team members such as an Accountant, a Coach, a Child Psychologist, sign a Contract recording the ground rules on respectfully engaging in the process in good faith. Further, the parties agree that if their matter cannot be resolved then they cannot retain the same lawyers in any subsequent court proceedings. A collaborative approach allows for a greater degree of co-operation between a range of professionals involved in helping families.
How can Mills Oakley help you?
At Mills Oakley, we have a number of family lawyers and Accredited Specialists who are highly skilled in ADR and can assist you to embark on any of the ADR methods referred to in this note. Additionally, three of our lawyers are also collaboratively trained family lawyers. We are otherwise constantly negotiating and mediating and have participated in a number of arbitrations. If you would like to discuss any aspect of this note, please do not hesitate to contact us on 02 8289 5800.
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