Forms Of Dispute Resolution
Expert legal advice on the different forms of dispute resolution in family law
There are a number of ways you can resolve your family law case. Different methods are appropriate for different circumstances. There is no one best approach, however litigation is almost always a last resort.
Read about these methods in more detail below or contact our team of family lawyers to help resolve your dispute positively and efficiently.
- Direct discussions – separating couples are sometimes able to have discussions with each other and reach an agreement together. For a successful direct negotiation it is important that both parties understand their respective financial circumstances, legal rights and obligations and that there is no power imbalance. For this reason, before you start a negotiation with your ex-partner, we recommend that you obtain at least preliminary legal advice from a family law expert.
- Negotiation – Negotiation can also occur via solicitors. It can occur verbally or in writing, or where appropriate, in person.
- Collaboration – Collaborative Practice is also known as “The Respectful Divorce Process” and is a very unique form of dispute resolution. It requires practitioners with specialist training and expertise. Not all lawyers are collaboratively trained or practice collaboratively. The collaborative process requires a commitment of both parties not to commence or threaten to commence litigation and primarily involves face to face meetings between the parties and their solicitors, rather than the traditional exchange of correspondence and documents. It is a flexible dispute resolution model and can involve other experts to assist the parties such as accountants, communications or children’s experts.
- Mediation – Mediation is a well-established and popular form of dispute resolution with a high success rate. It involves in-person discussions/negotiations between the parties, with the assistance of a jointly-appointed, trained mediator (usually a lawyer or barrister). The parties’ solicitors are usually, but not always, in attendance. The role of the mediator is to assist the parties to explore options and reach a lasting agreement can be constructed. The cost of mediation will vary, depending on the complexity of the dispute, the format it takes (e.g. one day or a number of shorter days) and the expertise of the mediator.
- Arbitration – Arbitration is a form of dispute resolution which involves the making of a binding award which is registered with the court. Both parties are entitled to be represented by the legal practitioners of their choice, including counsel where necessary. Parties to arbitration agree to appoint an arbitrator (usually a senior barrister or retired judge) who will make a decision about the issues in dispute. The parties may set the parameters of the arbitration and are able to determine when the preliminary issues of disclosure and the like are to be completed, whether the issues in dispute will be determined after the making of written or oral submissions, or, if the matter is to take a more traditional form, whether evidence will be given, by whom and in what form.
The key to a successful outcome via any of these options is knowledge and preparation. Knowledge is power, and preparation provides confidence.
If negotiations are unsuccessful, you can commence Court proceedings at any time. For almost all cases, Court is your last resort. Proceeding to Court is expensive, time-consuming and fraught with uncertainty as to the outcome and timeframes. Having said this, there may become a point where proceedings are necessary (i.e. in circumstance of urgency or where a time limit is approaching) and expert advice should be obtained if that point arises.