Assisted by Jessica O'Brien
Engaging in a process to resolve family law disputes can be a daunting process. It is well known that matters taken to the Court are time-consuming and result in costly fees for both parties. The recent merge of the Federal Circuit Court and the Family Court of Australia has seen the introduction of stricter requirements for parties to attend Alternative Dispute Resolution ('ADR') before proceeding with an application before the Court.
What is ADR?
ADR is the collective term used to describe the different processes parties can take advantage of, such as Family Mediation, Arbitration and Family Dispute Resolution, to resolve both parenting and property disputes privately without advancing to Court.
There are various advantages to utilising ADR processes in comparison to taking the matter directly to the Court which include:
- Privacy and confidentiality;
- More cost effective;
- Usually, quicker results;
- Promotes the interests of the parties;
- Encourages communication between the parties;
- Empowers the parties; and
- It is a flexible and a less formal process than attending Court.
There are two ADR processes within Family Law that is frequently used by parties to resolve disputes, Mediation and Arbitration. In parenting matters, pursuant to the Family Law Act 1975, it is a requirement for parties to genuinely make an effort through Family Dispute Resolution before a matter can be commenced at Court. The Family Dispute Resolution is conducted by an accredited Family Dispute Resolution Practitioner, who will provide the parties upon completion with a section 60I certificate. If the parties are not able to reach an agreement at the Family Despite Resolution, this certificate is filed along with the Initiating Application for parenting Orders and tells the Court that the parties made a genuine effort to resolve their parenting dispute outside of the Court.
What is Mediation?
Family Law Mediation is a structed negotiation process conducted by a neutral third-party Family Mediator who is often either a solicitor, barrister or on occasions a former Judge. The Mediator allows both parties to explain in their own words their concerns and what they wish to achieve, helps the parties to identify the issues in dispute, and encourages the parties to engage in discussions to reach a settlement that they are both comfortable with. This process can be utlised by the parties either prior to or during Court proceedings and is a great process to avoid the time and money associated with Court proceedings.
Medication can proceed using two methods.
- Facilitative Mediation, where the Mediator focuses on problem-solving the respective interests of the parties.
- Evaluative Mediation where the Mediator is often an expert advisor of family law and focuses on evaluating the legal merits of each party's case.
Another advantaged of Mediation is that you can agree to attend again if you don't reach an agreement on the first occasion.
If an agreement is reached, you have the opportunity to formalise the agreement to ensure that both interests are protected. It is advisable that you seek legal advice on formalising the agreement.
If an agreement is not reached to finalise the matter or to attend another mediation, they you can pursue your matter through the Courts.
In most of the cases that are now before the Court the Courts is ordering the parties to attend Family Mediation prior to a hearing date being allocated.
What is Arbitration?
Family Law Arbitration is a voluntary method of ADR which is conducted in a private setting by a qualified Family Arbitrator who will make a determination ("Award") based on the documents filed, evidence provided, and submissions made on behalf of either party. This process can be undertaken by parties either by agreement or by a direct court referral. The advantages of Arbitration in comparison to other mediation style ADR is:
- A Family Arbitrator oversees the progression of the matter and can adapt the speed of the process to suit the dispute; and
- When a decision is made the Arbitrator will issue their conclusion (known as an 'award'), which has the same enforcement effect as a Court Order.
If a party is not happy with a decision, the Courts can review the award and potentially either affirm, reverse, or vary the determination.
NOTE: it is important to note that Family Arbitration can only be used for Family law property disputes and not for parenting matters.
Why Coleman Greig
It can be difficult to decide which Mediator or Arbitrator to choose to conduct your ADR process. Coleman Greig provides professional and accessible Family Law Mediators and Arbitrators who are fully accredited through the Australian Institute of Family Law Arbitrators and Mediators as well as being Accredited Specialists in Family Law through the Law Society of New South Wales. By also practicing exclusively in the area of family law, each of our Family Mediators and Arbitrators are well-equipped to assist parties in their process of ADR.
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.