Family & Divorce Mediation

sIf you are involved in a family law dispute, there are ways to resolve your matter without going to court. Processes such as mediation and arbitration provide an alternative method of dispute resolution and are typically quicker and less expensive than court proceedings.

What is Mediation?

Mediation is a confidential, flexible method of dispute resolution which involves the parties to a dispute meeting face-to-face (or via audio-visual link) with an impartial third party (the mediator). Mediators assist the parties in resolving the dispute themselves by guiding and facilitating discussions. They encourage open communication but typically do not provide legal advice or decide the matter. Parties engaging in mediation should do so willingly and make genuine attempts to resolve their issues. While mediation may not always provide a full resolution, it can assist in narrowing down the issues in dispute, leading to more streamlined and concerted negotiations moving forward.

In addition to the potential cost savings, mediation has other benefits including:

• Flexibility – the location, date and time are agreed between the parties and the mediator rather than set by a court, which usually achieves a quicker result.
• Mediation is less formal than court proceedings and can therefore be less daunting. The parties are not confined by court formalities and more technical rules of evidence, enabling them to explore different ways to resolve their issues.
• Mediation provides an opportunity for a separated couple to preserve their relationship which is particularly beneficial if they need to co-parent.

What is Arbitration?

Arbitration involves a professional independent person with expertise in a particular area (the arbitrator) making a binding decision after each party to a dispute presents their arguments and evidence. Arbitrators are experienced legal practitioners who are specially trained and accredited in arbitration. Arbitrators must be accredited by Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) to be able to conduct family law arbitrations.

Arbitration in family law matters is voluntary and can be used to determine certain financial matters. Currently, arbitration is only an option for financial matters and not parenting disputes. The parties can agree to a private arbitration even if court proceedings have not been commenced, or if court proceedings are in progress, arbitration may be referred by the court.

Parties agreeing to arbitration must also agree on who will be appointed as the arbitrator, the issues to be determined, the costs, and the way the arbitration will be conducted (for example, how documents and evidence will be exchanged and presented).

With increasing delays in the family court system and a backlog of matters awaiting hearing, arbitration is an important alternative process to help reduce some of this burden, by resolving matters quicker and generally more cost-effectively than going to court.

Arbitration may also be used to determine a specific issue in the context of an overall family law matter. For example, an arbitrator may be appointed to determine the value of business interests in complex family law cases. This may then lead to more meaningful discussions around property settlement negotiations.

Decisions made by an arbitrator, also known as ‘awards’, can be registered with the court (without the need for court proceedings to have been initiated at all and without the need for the parties to attend court). The awards are generally final and binding and have the same effect as if made after a court hearing.

How we use mediation and arbitration

If you are interested in using mediation or arbitration to assist you in your family law matter, at LEDA Lawyers we can utilise these methods of dispute resolution within the framework of Collaborative Family Law Practice. We do not offer mediation or arbitration services outside of the Collaborative Family Law model.

By using these alternative dispute resolution methods within the Collaborative Family Law framework, you retain the benefits offered by Collaborative practice over traditional family law. These include:

Non-adversarial process: If you use mediation in the traditional family law model, you are still operating in a combative system, where you and your former partner, and any lawyers involved, are on opposing sides, “fighting it out” to reach a resolution. On the other hand, if you use mediation within the Collaborative model, you, your former partner, and your respective lawyers, work proactively together to reach an agreement.

No threat of court: When mediation is utilised in traditional family law, the threat of court is ever-present, which often adds pressure to decision-making and can cloud a person’s judgement. In the Collaborative Family Law context, the threat of court is removed, and parties can mediate with the freedom to explore resolutions that serve everyone’s interests.

You set the pace: In traditional family law, the pace of proceedings is largely dictated by the court process. This can turn mediations into very long sessions that feel like a “survival of the fittest” trial, in which an agreement must be reached or court proceedings will be initiated. In Collaborative Family law, you are in control of the pace of your matter, and mediations can be held over multiple shorter meetings. This gives everyone some “breathing space” to make better decisions for you and your family.

If you need assistance or are interested in finding out more, contact [email protected] for expert legal advice.