Family law and Alternative Dispute Resolution in 2018
Nowadays many, if not most, people know a family member, friend, or colleague who has found themselves in the family law court system following the breakdown of their relationships. It is a reasonable assumption that none of those people would have considered the process to be enjoyable, but would have almost certainly seen it as slow, expensive, and emotionally taxing.
Whilst litigation is both necessary and unavoidable in some circumstances, for the majority of people there are other options available which are:
- Less adversarial,
- Less expensive,
The alternatives to litigation are typically referred to broadly as ‘alternative dispute resolution’ processes. Those processes include:
- Collaborative law,
Mediation is by far the most well known and most common form of alternative dispute resolution. With that being said, the ways in which mediations can be conducted are as wide and varied as the participants.
Broadly speaking, the mediation process involved engaging a suitably qualified or experienced mediator whose task is to facilitate a discussion between parties in an effort to help them formulate and reach an agreement themselves. In it’s purest form the mediator does not proffer any views or opinions but simply ensures the discussions remain ‘on-track’.
Mediation in family law is often undertaken in a slightly different manner whereby each party (and, potentially, their lawyer) are in different rooms and the mediator moves between the rooms carrying messages, offers, and proposals. These are known as ‘shuttle mediations’, and are the most common form of mediation when family law issues are being discussed.
Additionally, and depending on the mediator, in an effort to assist one or both parties if they come to a ‘sticking point, mediators in family law matters will sometimes reality test the parties and, subtly, suggest some different solutions. In that sense family law mediations differ somewhat from the ‘pure’ form of mediation however the success of that approach can’t be denied with the overwhelming majority of matters which go to mediation being resolved by agreement.
If an agreement is reached at mediation it can then be formalised via consent orders, or financial agreement.
The key to a successful mediation lies in each parties willingness and ability to compromise. A good rule of thumb is that if everyone leaves a mediation feeling like they’ve had to ‘give’ a little more than they ideally wanted then the result is probably right.
Another alternative dispute resolution approach involves the adoption of collaborative law. Collaborative law lawyers are specially trained in the process, and
A 2006 Family Law Council report prepared for the Attorney-General provides a succinct, precise explanation of collaborative law:
Collaborative law is a method of dispute resolution whereby the parties and their lawyers contract to settle a matter without involving the court. Parties wishing to engage in the collaborative process must each retain a lawyer to represent their respective interests.
The parties must also be prepared to participate actively in a process of open negotiations, aimed exclusively at settlement. According to Pauline Tesler, a Californian-based collaborative lawyer, collaborative law ‘combines the positive problem solving focus of mediation with the built-in lawyer advocacy and counsel of traditional settlement-oriented representation … giving rise to potentialities not generally found in other dispute-resolution models’.
Collaborative law provides more scope for creativity and openness than the traditional, adversarial court process and it enables the parties to have complete control over the process. That sense of control can be very empowering, especially when compared with the court process whereby each party simply has a decision imposed on them. One party may be happy with that decision, one may be unhappy, or both may be happy or unhappy, but they have little control over the outcome.
For a long time arbitration was something largely conducted in the ‘commercial world’, and although the scope to use arbitration in family law matters has existed for many years it is really only over recent times that it has become a more common approach.
Arbitration shares more traits with the court process than with the mediation/collaborative law approaches referred to above, however it shouldn’t be dismissed as it has the ability to provide outcomes and certainty in a, typically, far more cost-and-time-effective manner. Court proceedings can take several years to meander through the system, whereas arbitrations can be conducted from start to finish over the course of a few months.
The process itself involves all parties agreeing to participate in arbitration, and then engaging a suitable individual to act as arbitrator. The role of an arbitrator is akin to the role of a judge in that they are tasked with hearing evidence, and making a decision. As a consequence of the serious responsibility being placed on them the most highly sought after arbitrators tend to be retired judges, or senior barristers such as Queens Counsel.
An arbitration runs in a similar manner to a Court hearing, with evidence presented, witnesses cross-examined, and findings made. At the end of that, the arbitrator then hands down an ‘award’ (which is similar to a judgement in a Court matter). The award can then be registered with the Court and becomes binding on all parties, with fairly narrow scope for appeal.
Arbitration can only be utilised for property matters, whilst parenting matters remain solely within the Court process.
The question as to whether alternative dispute resolution is appropriate varies on a case-by-case basis, however the circumstances where it would not be appropriate are relatively few.
The team at Murdoch Lawyers are happy to discuss your options with you, and determine the course which will lead to the most appropriate, time effective, and cost effective outcome.