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Family Law: How to settle your matter without commencing court proceedings

What is alternative dispute resolution ("ADR") you ask? It is a term used for dispute resolution processes, which may be used in lieu of, or to assist our clients, prior to judicial intervention (going to court - which none of us really want or can afford!)


A little known fact by our clients is that Solicitors and Barristers in Australia are actively required by Law, to advise and encourage clients of all appropriate ADR routes available to them. Solicitors can be chameleons when it comes to considering which ADR option matches their client perfectly! Engage a good solicitor from the beginning, to ensure that your matter is handled with expertise.


It is often said that those solicitors who focus on ADR outcomes are very popular and we believe our office has been so successful, simply because of this - where ADR methods are successful, our client will never end up going through years of Court to find a resolution to their matter. In other words, your matter will not be determined by a Judge and is instead settled privately between yourself and the other party. The best thing about ADR? Research has shown ADR to achieve considerable savings of time and costs for individual parties and for the Courts.


From a practical perspective, there are numerous methods of delivering ADR, which you as our client, can consider to cater to the characteristics of your particular dispute. However, please note that in some instances, there may be issues surrounding domestic violence and therefore ADR may not be an appropriate option for you (please touch base with us, if this is a concern for you).


I will now move forward in discussing some of the ADR options available to you:-


Negotiation


This is usually the starting point for all ADR options. The term 'negotiation' is an interactive, and voluntary process, where the parties liaise with each other, or through their legal representatives, to bring resolution to their dispute by mutual agreement. The negotiation process is responsible for the resolution of more matters, than any other dispute resolution option. Negotiation is best entered into in the early stages of a dispute when parties are still relaxed, and it may stop a dispute from escalating. Equally as beneficial as direct negotiation, is indirect negotiation, where parties can each engage their own solicitor to act as negotiator, if there is tension or a broken relationship.


Family Dispute Resolution


Family dispute resolution is required to be genuinely attempted prior to commencing Court proceedings with respect to parenting matters (which we all want to avoid!) This is an ADR option where each party can 'bring to the table' their concerns with respect to parenting and/or property matters in more of a 'round table' setting, facilitated by a trained family dispute resolution practitioner who will guide the parties through the process.


Family dispute resolution can be arranged through local organisations (such as Family Relationship Centres). If the parties are able to come to an agreement - great! It is important to note that a parenting plan entered into at family dispute resolution is not enforceable by the Court. Please ensure that you arrange to have the agreement documented by way of Consent Orders which can be lodged with the Court - Our office can assist.


Mediation


Mediation is probably the next step a savvy practitioner will mention to their client, after they have determined that negotiation or family dispute resolution will be unlikely to resolve a dispute. Mediation has been used since the 1960s to resolve disputes as diverse as construction of space stations, to neighbourhood disputes over barking dogs. It can additionally be used in situations where parties want to avoid potential conflict, for example, to assist in planning and decision-making.


Mediation is an efficient and empowering way to resolve disputes and is more formal than family dispute resolution. Not only is it cost effective, but it has also been shown to be on of the most therapeutic forms of ADR available. Mediation also occurs on a 'without prejudice basis', which means that any discussions during mediation are confidential and cannot be used if the matter eventually ends up in Court. Mediation is focused on taking into account each party's interests, as opposed to focusing on their legal rights as such. There is a focus on settlement, and a trained mediator manages any power imbalances between the parties.


Arbitration


Arbitration is the determination of a property dispute by an independent third party - the arbitrator. The arbitrator considers the facts and merits of each party's case and delivers the decision in writing. The decision is binding either on its delivery or after filing it in the Court, when it becomes an order.


Unlike mediation, arbitration is a formal process wherein parties present their arguments and evidence. The arbitrator then makes a determination which could be on an interim or final basis. Our clients should be aware that arbitration is a process akin to a trial in Court, and has sometimes even been described as not in fact being an ADR process at all. However, the benefit of arbitration is that it does in fact avoid the need to go to Court and can be a lot faster and cheaper than litigation. Arbitration brings the finality that parties to a dispute crave, but still allows the parties to be heard.


Collaborative Practice


Collaborative practice requires parties to a dispute to agree to focus on settlement options, and not to litigate. The process involves more face to face meetings, correspondence and may involve experts who advise and coach the parties such as accountants or financial advisors. It is an appropriate option for clients who will have an ongoing relationship with the other party (for instance - they need to be able to co-parent in future). It is also appropriate for clients who are deeply invested in the outcome of the dispute.


Collaborative practice can occur directly between the parties or through your solicitor. Solicitors representing the parties should also have a mutual intention to focus on negotiation and settlement, rather than litigation.


Please telephone our office on (07) 3180 8801 or email us on administration@finnigansantoso.com if you require our skill and expertise, in assisting to potentially have matters settled outside of litigation, in a cost and time effective manner.

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