Alternative dispute resolution in family and relationship law
Family & Relationship Law eBulletin - 16 December 2014
If you are separating from or divorcing your partner, you will need to work out how you divide your property and financial assets. Where you and your partner do not agree about how your assets will be divided, the law requires you to make a genuine effort to resolve your dispute through alternative dispute resolution channels before issuing court proceedings.
In this article, we look at some of the alternative dispute resolution options available in family and relationship law.
Alternative dispute resolution includes options like family counselling (in the event of there being a parenting issue), direct negotiation (with or without lawyers), mediation, conciliation, collaboration and arbitration.
Reaching an agreement with your former partner offers many advantages, such as:
- you make your own decisions;
- you greatly reduce the financial and emotional costs of legal proceedings;
- your continuing relationship as parents, if you have children, is likely to work better;
- you are able to move forward and make a new life for yourself; and
- you may improve communication with your former partner and be better able to resolve disputes in the future.
A common approach in resolving family and relationship disputes is to participate in lawyer-driven mediation.
This involves a meeting or meetings between the separating couple and their lawyers, as well as a mediator, who is usually an experienced family lawyer. The mediator will act as a neutral and independent person to try and help the parties come to a resolution.
If an agreement is reached, your solicitor will formalise the agreement in writing so that it is binding and enforceable. In our experience, the statistical success of the mediation approach is very high, and mediation is an option that generally results in a positive outcome for the parties involved.
Conciliation is similar to mediation, however the conciliator plays a more direct role in helping the former couple resolve their dispute than a mediator, who must remain impartial at all times. For example, a conciliator can make proposals for settlement.
In arbitration the disputing parties present their disagreement to an arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s) then determine the outcome of the case.
The collaborative approach is different from the more traditional methods of dispute resolution. It empowers you and your former partner to have greater control and input into your settlement process, via confidential meetings between you and your lawyers. You and your former partner can maintain control of your negotiations, any associated costs and ultimately, your outcomes.
The three basic principles of a collaborative approach are:
- a pledge not to go to court;
- an honest exchange of information , including open disclosure of all relevant documents and details; and
- a solution through negotiation in good faith, that takes into account the parties’ priorities and where applicable, those of their children.
Changes have been made to the family law system to encourage parents to develop cooperative parenting solutions without going to court. Family dispute resolution is a practical way for separating families to try to resolve any disagreements and make arrangements for the future.
For more information about compulsory family dispute resolution visit: www.familyrelationships.gov.au
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.