Phase two
Dispute resolution
Correspondence with the other party
Your lawyer will engage in communication with the other party or their legal representative. Correspondence can address procedural matters, such as interim arrangements for children and requesting information, as well as negotiations and settlement offers. Sending and receiving correspondence between parties can take a considerable amount of time, especially if amendments to settlement documents are needed.
During this time, you and your former partner will need to provide disclosure. The disclosure process is addressed in further detail in this section. You will be notified of all correspondence received from or on behalf of your former partner and asked to give us your instructions in reply.
If an agreement is reached through negotiation at this stage, it can be formalised in consent orders that are filed with the court. Once accepted by the court, the orders become legally binding and have the same effect as if your matter was determined by a trial judge. We can take care of this process for you, including the implementation of the orders.
In our communications with you and your former partner we follow the Best Practice Guidelines, published by the Family Law Council and Family Law Section of the Law Council of Australia. We take a constructive and conciliatory approach to the resolution of your matter.
Mediation
Preparing for mediation
Mediation can occur at various times during the family law process and it is often the preferred way to resolve a family law dispute. Parties can agree to mediate their matter prior to, or without ever, making an application to the court. Alternatively, parties involved in court proceedings can agree to mediate their matter outside of court.
Mediation will usually be booked around four weeks in advance, to allow for preparation. It’s important that your lawyer has all the relevant information in advance of the mediation. This usually involves the exchange of further disclosure with the other party.
Financial matters often involve the engagement of experts to provide property or business valuations. You may be required to provide further documents to the valuer, as well as organise time for a valuation to be performed.
Prior to a mediation, the parties each prepare and exchange a position statement that they also share with the mediator. This document sets out the background to the matter, the assets available for division and the party’s desired outcome.
What happens in a mediation?
The purpose of mediation is for the parties to reach an agreement without the intervention and expense of court-based litigation. At a mediation, a third-party mediator facilitates discussions between you and the other party. This is a compulsory step in parenting and property matters before filing an application for orders.
On the day of mediation, you will first meet with your lawyer and your barrister (if counsel is briefed) to discuss any pertinent matters and your desired outcome.
The mediator will introduce themselves and there will be an overview of the major issues in the matter. The mediator will meet with the lawyers of both parties to discuss the relevant issues. The parties (usually through your lawyer) will exchange settlement offers. This process is repetitive and concludes either when the parties agree to a settlement, or when the mediator finds that further negotiations will not result in settlement.
During the mediation, the mediator may address you personally to discuss settlement options. You will also be expected to provide instructions to your lawyer regarding the offers made.
If an agreement is reached at mediation, we will document the terms of your settlement in consent orders which are then filed with the court, or a financial agreement. Once accepted by the court, your agreement will be legally binding. We also can assist with the implementation and enforcement of your settlement. If mediation is unsuccessful, you may continue to negotiate an agreement with your former partner through correspondence, you may attempt mediation again, or you may seek a judicial determination by the court.
Arbitration
Arbitration is an alternative to mediation and a judge-determined outcome. An independent third party is appointed as an arbitrator to make a decision on a discrete issue or a final determination of a matter.
Arbitration is only available in financial matters; parenting matters are unable to be arbitrated at this stage.
> Understand more about arbitration
Understanding arbitration
Arbitration is an increasingly popular alternative to traditional court proceedings. Unlike litigation through the court system, parties choose their own arbitrator and the process is typically conducted privately.
Parties cannot withdraw once the arbitration process has commenced and the outcome is legally binding.
Costs
Arbitration is typically a more cost-effective dispute resolution process than litigating through the court system, as matters can be actioned and heard sooner.
Cross-jurisdictional matters
Arbitration may be used domestically and internationally to deal with matters in a specific jurisdiction. Both parties must agree upon the jurisdiction under which the dispute will be arbitrated.
Choosing an arbitrator
An arbitrator is selected by agreement between disputing parties, or through an independent third party.
What are the benefits?
Arbitration offers greater privacy than litigation – the process is confidential, and disclosures made during the process can be protected. It is also often faster than going through the court system.
Parties can select their arbitrator as well as the specific issues they wish to resolve. Parties can also arbitrate a discrete issue, allowing their matter to return to the court for a final determination if they wish.
Arbitration can be conducted in person, by video conference, by written submission, or as agreed by both parties.
How does an arbitration end?
At the end of the process, the arbitrator makes an award. Once registered, the award can only be set aside on a question of law (similar to an Appeal) or on limited grounds.
> Click here to move to phase one: First steps
> Click here to move to phase two: Dispute resolution
> Click here to move to phase three: Pre-action procedures
> Click here to move to phase four: Preparation for court
> Click here to move to phase five: Implementation
> Click here to view more about Disclosure
> Click here to view more about binding financial agreements