Family and Defacto Relationship Law
Wills & Estates
Family Dispute Resolution (“FDR”), or mediation as it is commonly known in the community, is a process used to attempt to resolve parenting and property disputes outside the court system. Most couples who need to deal with either parenting or property disputes upon separation want to avoid going to court. FDR can be a cost-effective pathway to finalise your family affairs.
Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternative approaches, and endeavour to reach an agreement.The mediator must remain impartial (i.e. unbiased) throughout the process.A good mediator will help the parties to raise all necessary issues in a calm and controlled environment, and do their best to steer the parties towards their own negotiated agreement.Unlike a Judge in court, it is not the mediator’s role to make decisions for the parties.Any decision-making is left entirely up to the people in dispute.Additionally, because mediation is a facilitative process, a mediator provides procedural assistance in managing the dispute resolution process.
In parenting disputes it is now compulsory for most parties to make a genuine effort to resolve issues at FDR before an application for parenting orders can be filed with the court. The main exceptions to compulsory FDR relate to situations involving family violence, child abuse or urgency. FDR services are provided by some public organisations (such as the Family Relationship Centre and Relationships Australia) and by private mediators. In each case, it is important that the mediator is a registered family dispute resolution practitioner. This allows them to issue a certificate (known as a section 60I certificate) at the conclusion of an unsuccessful mediation about children. That certificate is evidence that a genuine attempt was made by the parties (or at least one of them) to resolve their dispute without resorting to court litigation. Once you have a section 60I certificate, you can make an application to the court for parenting orders.
Whereas FDR regarding parenting disputes is more-or-less compulsory for all parties before they can commence court proceedings, FDR regarding property disputes is not compulsory before court proceedings, although pre-action procedures encourage FDR. Most parties like the idea of avoiding potentially costly and lengthy litigation by attempting to negotiate a property settlement. Mediation is one way of trying to achieve this outcome.
Most FDR services provided by public organisations only involve the parties and the mediator i.e. lawyers do not normally attend these forms of FDR. However, with private mediation, lawyers generally accompany their clients to mediation, which can be beneficial because each party can obtain legal advice from their lawyer during the FDR and thus sometimes overcome hurdles that might otherwise stand in the way of an agreement. Additionally, your lawyer can help “brainstorm” possible alternative solutions with everyone involved, which may lead to agreements which are mutually acceptable to the parties.
Our Queensland Law Society Family Law Accredited Specialist lawyer, Lindsay Woods, a former mediator himself, has a lengthy history in representing clients at FDR and is a staunch supporter of FDR in the right circumstances because he has seen many family law disputes successfully resolved through mediation, resulting in formal settlements which were timely, much less expensive than litigated matters, and which generally had happier endings because the parties had more control over the process and the final outcome. Dispute resolution through FDR is enhanced where there is a reasonably high level of willingness by the parties to solve their problems together with respect and dignity, as difficult as that is sometimes in trying times.
Lindsay will assist you to prepare for FDR by thoroughly explaining the process, helping you identify issues which need to be addressed between you and your spouse/former partner, and exchanging relevant information and financial documents with the other side prior to FDR. If attending FDR with you, Lindsay will listen to and consider all items on each party’s agenda, provide legal advice during FDR, help you explore ideas and options raised, and assist the mediator and parties to record in writing any decisions or agreements made during FDR. If any negotiated agreement is worthy of converting into a document for the purpose of formalising the agreement under relevant provisions of the Family Law Act, whether the agreement relates to parenting or property issues, Lindsay will prepare those documents or review documents prepared by the other lawyer to ensure they are clear and accurate and protect your interests.
The potential advantages of FDR outweigh the potential disadvantages. Successful FDR will see your dispute resolved far quicker and far more cost-effectively than it will be through court proceedings. One downside to FDR – where private mediation is used – is that it will add to your legal expenses if FDR proves to be unsuccessful in resolving the dispute.
To find out more about family dispute resolution, call us now to make an appointment with Lindsay, or submit your enquiry online now. Lindsay has acted for many clients over the years in resolving their family law disputes, many by means of mediation. He has the experience to prepare you for FDR and to support you at FDR. He also has access to reputable family dispute resolution practitioners who would be suitable to mediate your dispute.
Arbitration is another form of dispute resolution which is gaining popularity in family law matters. The rise of arbitration is mainly due to the ever-growing queues in the court system, where it is not uncommon for cases to wait 2 to 3 years for a hearing date.
Arbitration is a process in which the parties to a financial dispute present arguments and evidence to a neutral third party (the arbitrator) who makes a binding determination (usually called “an award”) to resolve the dispute. Arbitration – as a possible course – usually arises during court proceedings when lengthy delays in having a Judge hear a case and make a judicial determination become a reality. If both parties in a current court case consent to adopting arbitration as a means of resolving their dispute, the court can make an order referring the proceedings to an arbitrator. When the court makes such an order, it usually adjourns the proceedings to allow time for the arbitration process to be completed.
Basically, what the parties will do is elect to hand over the decision-making role to an arbitrator, rather than leave it with a Judge. The issues in dispute are determined according to the relevant family law. The award, once registered, has the same binding and enforceable effect as an order made by a court.
Generally, financial disputes between parties to a marriage or a de facto relationship (including same sex relationships) may be arbitrated. Applications for property settlement and spouse maintenance can be determined in this way. Parenting disputes and child support issues cannot be arbitrated.
The arbitrator must be an experienced and qualified lawyer who has completed specialist arbitration training and is included on an authorised list of arbitrators. Among the ranks of arbitrators are some retired Judges of the Family Court and Federal Circuit Court. The arbitrator is responsible for the conduct of the arbitration and the necessary decision-making required. The arbitrator must ensure procedural fairness is afforded to all parties involved. An arbitrator has, largely, the same powers and responsibilities as a Judge of the relevant court.
The parties participating in arbitration have the right to appear personally or through legal representation and to produce evidence. Subject to the directions of the arbitrator, evidence can be tested through cross-examination. The “ground rules” for each arbitration will be discussed and negotiated at the outset and will be recorded in an Arbitration Agreement before arbitration is conducted. The arbitrator has an obligation to produce a written decision after the conclusion of the arbitration hearing. The timeframe for the delivery of the decision will have been agreed to earlier and be stated in the Arbitration Agreement. This ensures the timely delivery of a binding determination.
There are many advantages of arbitration, most notably a much more timely finalisation of the dispute than that achievable through litigation. A flow-on effect of this is usually a substantial saving of legal expenses. Our family law accredited specialist lawyer, Lindsay Woods, can represent you in arbitration if this is a course you decide to take with your financial dispute. Call us now to make an appointment with Lindsay about your family law property settlement, or submit your enquiry online here.