You may have read recent commentary in the papers from the Courts regarding delays in the processing of cases through the Family Court. In one highlighted case, the relationship was less than three years, but six years after it ended the case was still languishing in Court. Some of this delay was due to the parties' conduct during that six year period but some delay is just inherent in the Court process.
While the basic theme of laws surrounding relationship breakups is that the parties should be able to move on with their lives, the delay in achieving resolution means that they are in limbo for an extended period of time and that not only impacts on their ability to move on, but also impacts their children.
As lawyers, we have a duty in such cases to promote reconciliation, not of the relationship as such but of the issues, and to guide clients through the process. Often the issues are far wider than property. Emotional issues surrounding the breakdown of the relationship can overshadow discussions. We of course can suggest the parties attend counselling to deal with those non legal issues, but both parties have to be willing to attend.
The lack of definite answers where the Courts have discretions under the law can make it difficult to give any certain answer to parties, for instance on such issues as economic disparity or spousal maintenance.
As a general rule, lawyers work hard to try and resolve matters for clients. In reality, there is no winner when parties separate and a degree of compromise is needed. However in those files where a standoff seems to have been reached, or where one party is refusing to cooperate in supplying information, or has a "head in the sand" mentality, something more is needed.
The assumption is that this is the point at which proceedings should be filed. The above comments from a Judge about the lengthy process have to be borne in mind however. The start of filing proceedings, even when matters progress smoothly through Court, is the start of a marathon which will be costly and emotionally draining. Although there are always opportunities to settle along the way, it would not be unreasonable to say that the whole process, if a hearing was ultimately necessary, could be two years. Although costs are normally awarded to the successful party, they are only awarded after a hearing and will not reimburse you for all the costs you have incurred. If you settle short of a hearing, unless you negotiate it as one of the terms of your agreement, then no costs will be recovered.
While a Settlement Conference is normally held as part of the court process, that is only assigned when all necessary information has been filed in Court and when your file comes up on the waiting list. This again involves a delay - of at least months from the point of filing proceedings - and the Court resources are such that a finite period of time is set aside of just over an hour for the purposes of the Settlement Conference. This is unlikely to be sufficient to resolve anything other than the simplest division or perhaps isolate the issues further.
With all of the above in mind, parties need to seriously consider as an option, the use of an experienced private mediator to work with them to achieve a settlement. Such a mediator needs to be properly trained, not a friend with them around the kitchen table, and they both need to have their legal representation present, so that they can be advised on the terms of agreement properly and it can become a binding agreement by law.
Obviously both parties have to agree to use a mediator and they will share the costs equally. It follows therefore that both parties have to see this as being of benefit to them. Parties are often reluctant to go to mediation. They may want their day in Court, perhaps they want the Judge to tell their ex off - sadly we have to tell clients that they are highly unlikely to have that satisfaction. One party might simply be reluctant to resolve matters. Our experience, both of private- and Court-led mediations, is that you can be totally surprised that a matter settles where the parties begin in absolute opposed positions.
Private mediation is cost effective where parties are at a standoff, but understand that the Court process will be protracted, emotionally difficult and costly for them. What can be solved in one day, a few weeks after the parties agree to go to mediation, could otherwise linger on, festering ill feeling.
The cost paid by each party before mediation commenced, with a professional mediator, is about the same as the cost of preparing and filing the first set of documents in Court. You will of course also have the costs of your lawyer preparing for, and attending at, the mediation.
You can expect that prior to the mediation, the mediator has received all information relevant to the parties so that they are well aware going into the meeting of the parties' positions and what they have to work with. This could include copies of letters between the parties' lawyers setting out the areas of dispute, valuations and other documents considered to be crucial.
How the mediation proceeds depends very much on the personalities involved. Sometimes it might be appropriate that the parties spend the whole mediation in the same room, but there should always be the ability to break away and have the mediator move between the parties. One person might be dreading being in the same room as their ex but a skilled mediator manages atmosphere in the room, insisting on civility between the parties.
A private mediation is not constrained by the resources of the Court so can explore issues in as much depth as is needed. Sometimes that does allow the airing of emotions that are getting in the way of resolution.
You might wonder why, if you each have lawyers they cannot resolve matters. Your lawyer is acting to represent you. They can advise you of the law and whether the position you are taking is likely to be successful if you go to Court. They cannot force the other person to agree with you.
In mediation, the mediator is neutral. Their aim is to work with you both to achieve resolution - however their payment is not dependent on there being a settlement. The parties are fully involved, and rather than having a result imposed on them as they would after a Court hearing, they decide the outcome they can both live with to have the matter at an end.
There are situations where mediation is not suitable. For instance, where there is a power imbalance between the parties, or if insufficient information is available for parties and their lawyers to feel comfortable about any compromise they are making. Sometimes it can be simply too early to have a mediation.
Regardless, if both parties agree to go to mediation and are paying a fee to do so, they are usually motivated to finalise matters.
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.