Australia: Five good reasons to try to resolve your family law property and parenting disputes through private mediation

Last Updated: 30 November 2016
Article by Tim Couch

So you've separated from your husband, wife or partner. Your stress and anxiety is rising to new heights due to legitimate concerns over an uncertain future. What do you do next? How long does it take to work things out? What are you entitled to?

Is there a timely way that we can try to work out parenting arrangements for our beautiful children? What do we do with the house, the mortgage, the cars, our savings, our household items, our superannuation? Who keeps what? And the thousand other similar questions going through your head.

You don't want to go to court if you can avoid it. You want to try to work things out amicably if at all possible. Have you considered a private mediation?

There are many benefits of engaging in private mediation to attempt to resolve your family law dispute. It may not be possible or even appropriate in some cases, but in the vast majority of cases it will be.

  1. Avoiding the delays of the Family Law Courts

Most Family Law Registries are presently experiencing unprecedented delays in determining cases. This is in part a result of an increased number of litigants and an insufficient number of judges. Judges dedicate themselves to helping parties resolve their disputes as quickly and as fairly as they can. But the system is overloaded with cases and, as they say, there are only so many hours in the day. It's a case of "take a ticket and get in line" and "we'll get to your case as soon as we can".

From the filing of an Initiating Application, many litigants may experience delays of 12 to 18 months for their case to be determined at a final hearing and sometimes even longer. This is becoming the norm in a number of registries. Do you really want the uncertainty to continue for that long? A private mediation may just be the alternative you are looking for.

  1. Having more control over the process

In the Family Law Courts, the judge controls and manages the court process from start to finish. You cannot choose who will hear your case. The court will determine who will hear your case, and when. Conversely, you and your former partner and your respective solicitors can choose who to select as the private mediator. There is a wealth of highly experienced and approachable barristers and lawyers who offer mediation services.

  1. A cost-effective solution

Litigating your family law dispute is rarely a cheap exercise. Any family law solicitor worth their salt will be able to give you a realistic estimate of the costs you are likely to incur, depending on the complexity of your matter and how it progresses through the court.

There is almost always a mountain of legal work involved in getting your case into court and presenting it in the best possible way in the hope of achieving a sound outcome. Not to mention regular court appearances. This usually takes hours and hours of effort and preparation on the part of your solicitor. This results in legal fees. A private mediation may just present a lower cost alternative.

  1. A failed mediation has rarely been a waste of time

Even if mediation is unsuccessful in resolving your family law dispute, it is likely to have been a very valuable process if both parties did make a genuine effort to resolve their dispute. Usually, the matters that were in dispute at the start of the mediation have now narrowed dramatically. Often with some further reflection and legal advice after the mediation, it may be possible to reach an agreement on any unresolved points without having to go to court.

If that's not possible, the matters left for the court to determine in your case have often now been heavily reduced. In turn, less court time should be required to determine your case – maybe two days instead of five or six or seven. This can often mean that the court can find the time to determine your case much sooner. And the chances of settling your case before a final hearing have likely increased as well.

  1. There will be more left for your future

Make your money work smarter, not harder. This is not really a legal point, but rather just common sense. The quicker you resolve your dispute with your estranged husband, wife, or partner, the quicker the uncertainty stops, the quicker the legal costs stop and the quicker your future begins. Ask yourself, is it really worth litigating your dispute through the Family Law Courts, when it may be possible to get the same or a very similar result via a private mediation in a fraction of the time and at a fraction of the cost?

Coming back to my earlier point, private mediation may not be appropriate in some cases. But in the vast majority of cases it will be. Where the two parties have honestly disclosed all relevant information to one another and made a genuine effort to reach a mutually acceptable solution at the mediation, there will be greater prospects of resolving the family law dispute in a timely and cost effective manner.

Don't let anger and thirst for revenge cloud your judgement

What I have found in my experience as a family lawyer is that when couples opt to take their dispute to the Family Law Courts, they do not necessarily believe that this course of action will produce the best possible result.

Rather, warring couples can be motivated by anger and the desire to make their ex-partner suffer. This is understandable. It's only human nature to long for vengeance when a relationship sours and we feel rejected, slighted, humiliated or betrayed.

But the attitude: "I'll fight tooth and nail every step of the way" is hardly going to lead to a speedy and amicable resolution. Bear in mind that just as your ex is being made to suffer, you'll be suffering every step of the way as well.

Consider taking a more practical approach to resolving your family law dispute, such as private mediation. It may just turn out to be one of the most sensible decisions you've made so far.

Tim Couch
Divorce and separation
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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