Alternative Dispute Resolution

Sometimes, both parties are motivated to separate without unnecessary conflict but communication can be hard and they cannot do it alone and need some assistance. The two primary options are mediation or collaborative law.

The issues involved in a separation can be highly emotional, and you may not be able to communicate and agree on suitable outcomes with your former party. Where possible, a negotiation between your legal representatives (usually via letters) can result in an agreement that is fair and practical, and solved in a timely manner. If agreement can’t be reached via negotiation, the next step is to engage in mediation.

Mediation is an excellent alternative to have your dispute resolved by commencing court proceedings. There are many benefits to reaching an agreement through mediation: The costs are significantly lower than court proceedings; the process is much faster and matters can be resolved in a shorter time frame; parties have agency in the final outcome; and it can reduce ongoing conflict by resolving issues early.

Mediation can occur without solicitors or can be legally assisted. Mediation offers parties the opportunity to be creative in dividing their assets or making care arrangements for their children. Mediation also allows parties to have control of the terms of the final agreement in the way that is not permitted when a judge makes orders about where your children live or how your assets are divided.

Mediation involves the assistance of a mediator, whose role it is to facilitate discussions that are directed at resolving the dispute. The mediator is neutral and assists in ensuring that discussions remain focused, child focused (when children are involved) and respectful.

Mediations may be legally assisted (where both parties attend with their respective lawyers) or parties may attend a mediation without legal representatives. Child inclusive mediations permit children to have a say in their care arrangements by employing the services of a child consultant (or child psychologist) who talks to the children to work out their concerns and worries and what is working for them.

Mediation must occur prior to the commencement of any court proceedings unless there are issues of urgency, abuse or family violence. In parenting matters the parents prove to the court that they have attempted to resolve their dispute through mediation by filing a Section 60I certificate which is issued by a registered Family Dispute Practitioner (a specialised mediator for parenting disputes). Parties in property matters are asked to prove to the court that they have made a genuine attempt to resolve their dispute by filing a Genuine Steps Certificate prior to the commencement of any court proceedings.

Collaborative Law is the process through which separating parties employ the resources of different relevant professionals (beyond just their lawyers) to assist in resolving not only the conflict that has resulted in the breakdown of your relationship but also to repair your relationship with your ex partner in a way that allows you to coparent in a meaningful way into the future. Depending on the matter, the Collaborative Law process might seek the assistance of an accountant (the financial neutral) or a child psychologist to assist the parties in exploring creative solutions to their dispute. The collaborative process will always be run by a coach whose job is to facilitate discussion and run the process.

Collaborative law is a bespoke process that can be moulded to the needs of your particular family and your particular issues but it usually involves a number of meetings where the agenda is set by the parties respective lawyers and the aim of the meetings is to resolve the agenda items or to work out what further information needs to be obtained to reach a resolution.

Collaborative practice is less interested with yours or your ex-partners rights and more interested in how to resolve your disputes in a manner that allows your children and each of you and your partner to move on to the next chapters of your lives in a healthy way, absent the damage that divorce can do when not done well.

If attempts to resolve your matter through Alternative Dispute Resolution have failed, the next course of action is to commence court proceedings.