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Mediation and Alternate Dispute Resolution

When families separate the best thing for everyone involved is to resolve any issues as amicably and early as possible.

There are many studies that show the negative impact of ongoing conflict on children and parents alike. It is often a delicate balancing act between seeking entitlements, and making a compromise to promote future harmony and calmness of life.

In some cases there are difficult legal issues that can only be decided by a Court, but in most cases it is of great benefit for the parties to access Mediation or Alternative Dispute Resolution services at an early time.

For parenting matters there is a requirement that parents attend mediation and attempt to agree prior to making an Application for a Court to decide arrangements. There are exceptions to this rule for urgency, family violence, or risk/abuse in respect of children.

Mediation is the most common form of dispute resolution and can be done privately (with a Mediator funded by the parties) or through government subsidised agencies such as Relationships Australia or the Family Relationships Centre. There are reduced costs involved with using the government subsidised agencies, however there are often long wait times for these services.

Mediation can occur with or without the parties having legal representation, of course legal advice before, during or after mediation is recommended. Mediators do not give the parties advice, their role is to facilitate the parties discussing their issues with a view to them reaching agreement.

Mediation is confidential (unless there are statements of serious risk of harm made) and the discussion at mediation is “without prejudice”, meaning it can not be binding to a Court.

Some of the benefits of attending mediation at an early opportunity are:-

  1. Reducing future conflict and enabling future cooperation between parties if they agree. Going through a contested Court process usually has the opposite effect of increasing the conflict between the parties;
  1. Enabling the parties to make the decision themselves, rather than a Court imposing terms;
  1. Reduced future legal costs of avoiding the Court process;
  1. Early resolution – the Court process can take 6 to 18 months in many cases;

Not all matters are suitable for mediation – where there has been family violence or there is a large power imbalance it may not be appropriate for mediation to occur. There will be an intake prior to mediation where the suitability for mediation is assessed. Some mediations involve the parties talking to each other in the same room, in other circumstances a shuttle mediation is more appropriate where the parties do not come in contact with each other and the mediator moves between the rooms.

Some other forms of dispute resolution to avoid a contested fight in the Family Court system are:-

  1. Collaboration – Each party retains a collaboratively trained lawyer, and those lawyers then work with each other to attempt to find a solution that is mutually beneficial to both parties. If the collaborative process does not produce an agreement then both parties must then retain different lawyers in the future.
  1. Conciliation – This is similar to mediation; however the Conciliator is able to provide the parties with some views of the legal aspects of their case and is able to take a greater role in guiding the parties to a resolution.
  1. Arbitration – The parties contract with an independent person (Arbitrator) with legal experience that hears from each party, reads documents, and then effectively decides their case in a similar way as a Judge. The Arbitration decision is binding on the parties, and if either party wishes they may then seek the decision be made into a formal Court Order by applying to the Court.

Many people expect that when they ask a Judge to decide their case they will be delivered justice and the decision will address the issues that are important to them. The harsh reality of the Court system is that the Judge is given the task of deciding the case, and at that point the parties lose all power in the situation, as they have handed all their decision making power to the Judge. The Judge will make a decision based on applying the facts to the law, however the result will most times not be favourable to both parties, and sometimes both parties may be dissatisfied.

By using mediation or other alternative dispute resolution processes the parties keep the decision making power themselves. There are often great benefits for the children of a relationship when parties use the mediation process fully, as the parties can make all types of arrangements for parenting their children by agreement that would otherwise not be part of the usual court decision making process.

For example, at mediation the parties can agree on daily routine type matters for children such as what time would be best for bedtime, how much screen time they should have, etc.

In our experience it is always best for parties to resolve issues as soon as possible and as amicably as possible so that everyone’s life is more enjoyable.

If you would like to know more about how mediation or alternative dispute resolution could assist to resolve your matter please do not hesitate to contact one of our family law team on 13 58 28 who will be happy to talk with you.

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