Going through a divorce or separation is incredibly stressful, but you can minimise some of the heartache by using Alternative Dispute Resolution (ADR) to resolve your family law matter.
Australian family law disputes can involve significant expense, delay and emotional stress, particularly when matters proceed through an adversarial court process. Fortunately, whether your family law dispute involves divorce, parenting or property, there may be ways to resolve some or all of your issues without going to court.
If you are going through a divorce or separation and want a more constructive and less damaging way to resolve your issues, talk to Leda Lawyers for family law advice about how alternative dispute resolution can help you.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution refers to processes used to resolve a dispute outside of formal court litigation. In family law matters, alternative dispute resolution focuses on helping former partners communicate and explore options to find workable solutions after they separate.
The process emphasises cooperation, negotiation and compromise, empowering you to have greater input into the outcome of your family law dispute rather than leaving the decision entirely in the hands of a judge.
The Federal Circuit and Family Court of Australia recognises a range of dispute resolution processes, including negotiation, mediation, Family Dispute Resolution and arbitration. The Court encourages people involved in family law disputes to make every effort to resolve their issues before commencing litigation, where it is safe and appropriate to do so.
Alternative Dispute Resolution – the Benefits to You
Here’s how you can benefit by using alternative dispute resolution for your family law dispute.
- Cost savings: Court proceedings are expensive, and legal fees can add up quickly. ADR processes such as mediation and collaborative family law may reduce the costs associated with traditional litigation, depending on the circumstances of your matter.
- Reduced stress: Family law disputes are inherently stressful, and litigation can amplify this stress. Alternative dispute resolution can provide a less formal environment, helping to reduce conflict and promote a more constructive resolution.
- Greater control over the outcome: Alternative dispute resolution fosters open communication and encourages parties to explore solutions. This can provide more flexible outcomes than court orders. Rather than a judge making decisions that will impact your future, you and your former partner can shape an outcome that better aligns with the needs and priorities of you and your family.
- Preservation of relationships: Court battles can exacerbate poor relationships, making it difficult to co-parent effectively or maintain positive communication. ADR encourages collaboration, which can be particularly important for former partners who need to continue co-parenting their children.
- Faster resolution times: Family law proceedings can take time to resolve. ADR processes may provide a more direct pathway to agreement, allowing you to move forward without waiting for a final hearing where an agreement can be reached.
- Increased privacy and confidentiality: Some ADR processes provide a private setting in which parties can discuss sensitive issues. However, the confidentiality protections that apply can vary depending on the process. For example, Family Dispute Resolution conducted by an accredited practitioner has specific confidentiality protections under the Family Law Act.
Types of Alternative Dispute Resolution in Family Law
Various ADR methods can be used in family law matters. The right approach will depend on the nature of your dispute, your relationship with the other party, whether an agreement can realistically be reached and whether the process is appropriate in your circumstances.
| ADR process | How it works | Common use |
|---|---|---|
| Negotiation | The parties communicate directly or through their lawyers to try to reach an agreement. | Parenting, property and other family law disputes. |
| Mediation | An independent mediator facilitates communication and helps the parties explore possible solutions. | Parenting, property and financial disputes. |
| Family Dispute Resolution | An accredited Family Dispute Resolution Practitioner assists separating families to resolve disputes. | Particularly relevant to parenting disputes before court proceedings. |
| Arbitration | An arbitrator determines certain financial or property disputes, providing a private dispute-resolution process. | Certain property and financial matters, but not parenting disputes. |
| Collaborative law | The parties and their specially trained lawyers commit to resolving the dispute cooperatively without court proceedings. | Parenting, property and other separation-related matters where collaborative resolution is appropriate. |
Negotiation
Negotiation is a process where parties, often with the assistance of their lawyers, communicate directly to reach an agreement. This can occur before, during or after other ADR processes.
A family lawyer can negotiate on your behalf, explain your legal position and help you assess proposed solutions before you agree to them.
Mediation
Mediation involves a neutral third party, known as the mediator, who facilitates communication between the parties. The mediator does not make decisions or offer legal advice but helps you identify the issues, explore options and reach a mutually agreeable settlement.
Mediation can take place with the support and advocacy of your family lawyer. The Federal Circuit and Family Court of Australia explains that mediation can be used to resolve financial and parenting issues and may take place before or after court proceedings have commenced.
For more information about Leda Lawyers’ services, see our family mediation and arbitration services.
Family Dispute Resolution
Family Dispute Resolution (FDR) is a specific form of dispute resolution that helps separating and separated families resolve disputes, particularly disputes concerning children.
In parenting matters, the Family Law Act generally requires a person to make a genuine effort to resolve the dispute through FDR before applying to a family law court for parenting orders, unless an exception applies.
Exceptions can apply in circumstances such as family violence, child abuse or urgency. FDR may also be considered inappropriate where there are concerns about safety or whether a person can negotiate freely.
If FDR does not resolve the dispute, an accredited FDR practitioner may issue a section 60I certificate where appropriate. The certificate can allow a person to proceed with a court application where the relevant requirements have been met.
It is important to obtain legal advice about whether FDR is required or appropriate for your particular circumstances.
Arbitration
In arbitration, the parties present their case to an independent arbitrator who determines certain financial or property disputes. Arbitration is less common than mediation in family law and is not available to determine parenting disputes.
The Family Law Act 1975 provides the legislative framework for arbitration of certain financial proceedings. Because arbitration involves a determination by an arbitrator rather than a negotiated agreement, you should obtain legal advice before deciding whether it is appropriate for your matter.
Collaborative Law
Collaborative law involves each party working with their own specially trained collaborative lawyer. The lawyers and the parties commit to working together respectfully and in good faith to reach a settlement without going to court. This process emphasises open communication and problem-solving.
Leda Lawyers’ collaborative family law team can advise you about whether collaborative practice may be suitable for your circumstances.
Is Family Dispute Resolution Always Required?
No. Although FDR is generally required before a person can apply to court for parenting orders, there are exceptions.
The circumstances of each family are different. For example, an exception may apply where there are concerns about family violence, child abuse or urgency. An FDR practitioner may also determine that FDR is not appropriate in the circumstances.
The Attorney-General’s Department explains that an accredited FDR practitioner may issue a section 60I certificate where FDR was inappropriate, where a party did not attend, or where the parties attended and made a genuine effort but were unable to resolve their dispute.
The Attorney-General’s Department provides further information about navigating Family Dispute Resolution, including circumstances in which an exemption may apply.
Because the rules depend on the circumstances of your case, you should obtain legal advice before assuming that you must attend FDR or that you are exempt from doing so.
A Little More on Collaborative Law
A key feature of collaborative family law as an alternative dispute resolution process is the commitment to keep parties out of court.
All parties involved in a collaborative law process, including clients and their lawyers, must sign a participation agreement which requires them to conduct confidential and transparent negotiations to resolve a matter without recourse to litigation. The parties agree not to threaten litigation, and their lawyers commit to the collaborative process.
Collaborative law can be used for a range of family law disputes, including parenting and property matters. The parties steer their matter rather than having directions and hearing dates set by a court. This can help minimise the costs, delays and stress associated with court proceedings. By giving the parties greater control over how their matter progresses, more flexible settlements may be reached than what might be ordered by a court.
If necessary, the parties can agree to involve an impartial coach or facilitator to assist in reducing conflict or a professional, such as an accountant, valuer or child specialist, to provide an expert opinion.
How Can Leda Lawyers Help Resolve Your Family Law Dispute?
Alternative dispute resolution offers a valuable alternative to traditional court litigation in family law matters. By prioritising communication and cooperation, ADR can help you work towards a resolution, reduce stress and costs, and preserve relationships where appropriate. It can give you greater control over the process and help you find solutions that work for your family.
Leda Lawyers are skilled negotiators and Certified Collaborative Lawyers. We have helped numerous clients navigate some of the most difficult times of their lives to get back on their feet after separation or divorce. We’ll help you focus on finding solutions that fit you and your family without the expense and anguish that can accompany litigated court proceedings.
We have been practising family law for over 20 years and understand first-hand the advantages that appropriate ADR processes can offer over traditional family law proceedings.
Whether you are considering negotiation, mediation, Family Dispute Resolution, arbitration or collaborative law, our team can explain your options and help you determine the most appropriate pathway for your circumstances.
If you need advice about resolving a family law dispute, contact Leda Lawyers to discuss your situation.
Frequently Asked Questions About Alternative Dispute Resolution in Family Law
What is alternative dispute resolution in family law?
Alternative Dispute Resolution in family law refers to processes that help separating or separated couples resolve disputes without relying solely on court litigation. Common processes include negotiation, mediation, Family Dispute Resolution, arbitration and collaborative law.
What is the difference between mediation and Family Dispute Resolution?
Family Dispute Resolution is a specific form of mediation used to help separating families resolve disputes. It is particularly relevant to parenting disputes because the Family Law Act generally requires a genuine effort to participate in FDR before a person applies for parenting orders, unless an exception applies.
Can family law disputes be resolved without going to court?
Yes. Many family law disputes can potentially be resolved through negotiation, mediation, Family Dispute Resolution, collaborative law or other dispute-resolution processes. However, whether an out-of-court resolution is appropriate depends on the circumstances and the issues in dispute.
Is Family Dispute Resolution compulsory in Australia?
Family Dispute Resolution is generally required before applying to a family law court for parenting orders, unless an exemption applies. Circumstances such as family violence, child abuse or urgency may affect whether FDR is required or appropriate.
Is mediation confidential in family law?
Confidentiality depends on the type of dispute-resolution process. Family Dispute Resolution conducted by an accredited practitioner has specific confidentiality protections under the Family Law Act. You should obtain legal advice about the confidentiality that applies to any particular mediation or ADR process.
Can a family lawyer attend mediation with me?
A family lawyer can advise and support you throughout the mediation process and, depending on the circumstances and the mediation arrangements, may participate in the mediation with you. Having legal advice can help you understand your rights, obligations and the implications of any proposed agreement.
Is collaborative family law suitable for everyone?
No. Collaborative family law is designed for parties who are willing and able to negotiate constructively. Where there are serious concerns about family violence, safety, coercion or a person’s ability to negotiate freely, another process may be more appropriate.