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Insights

With the pressures on the Family Court and the Federal Circuit Court, clients are experiencing ongoing delays with having cases resolved in a timely way. People are increasingly looking at other options to resolve their family law disputes.

There are a number of alternative dispute resolution options that can be used rather than proceeding to court for a trial determined by a Judge.

Mediation

One way to resolve a dispute is by attending a Mediation.

Mediation is a voluntary process that involves parties working together on solving their problem and using a neutral person (the mediator) to facilitate the discussions. The focus is on solving the problem rather than trying to convince one another of anything that has occurred in the past.

Mediation is an ‘interest based’ process rather than forcing an entrenched positions adopted by the parties to the dispute.

The three key elements for Mediation are the following:

  1. It is a voluntary and confidential process focused on interests rather than positions.
  2. The parties are assisted by a neutral third party to explore solutions.
  3. The parties focus on the future rather than past actions, to reach a future focused resolution that is acceptable to both of them.

Mediation can also be ordered by a Court when parties have already commenced court proceedings to try and help them resolve the matter in a more efficient and cost effective way. An agreement made at Mediation can be binding on the parties to the Mediation and particularly if there are court proceedings already before the court. Any agreement reached at Mediation can then be made into court orders.

How does Mediation differ from Arbitration?

Arbitration is similar to going to court, although it involves more expense as the parties pay for an independent arbitrator who is neutral, to make a decision about the facts and resolve the case similarly to how a Judge would resolve their case but without appearing in court.

Arbitration is competitive and adversarial in its process. Whereas, Mediation helps the parties reached a consensual decision that is suitable to both of them.

An Arbitrator imposes a decision upon the parties after listening to the evidence.  At a Mediation the parties retain control over the outcome of their problem whereas at Arbitration, the Arbitrator adjudicates between the parties and imposes a decision. Mediation is focused on having “win – win” for each party. Whereas, Arbitration can often result in either “win/lose” or “lose – lose” outcome for the parties after the parties take into account their legal fees, arbitrator’s fees etc. to resolve the matter.

A decision made by an Arbitrator is binding on the parties.

What is Collaborative Law all about?

The Collaborative Law process involves the parties to a dispute together with their lawyers, attending a series of meetings to try and resolve their dispute. It is not necessary to involve a third person such as a mediator or arbitrator. The aim of the Collaborative Law process is to keep the parties out of court.

The parties and their lawyers work together to reach a fair solution for their clients and to assist them to maintain a good future working relationship which is important particularly if there are children involved.  Collaborative Law, is voluntary and any agreement reached through Collaborative Law process can be turned into a binding agreement or by court orders that are filed with the court by consent of the parties.

Each process has its advantages and disadvantages. In the Collaborative process if the parties are unable to reach an agreement and it requires court proceedings to be involved, then the parties each need to obtain separate lawyers.

The main advantage in all of these options is that it gives the parties a quicker resolution to their family law problem rather than proceeding through the court, which is increasingly taking many months if not years to resolve their case.