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Resolving Family Law Disputes Out of Court
26th May 2022
Often when thinking about property settlements in Family Law matters, one of the first thoughts is of a bitter and protracted dispute that will end up in a Court room without any winners. Unfortunately this may be the reality for some, however, it is not the majority and there are always alternatives to Court litigation, or Alternative Dispute Resolution (ADR) processes.
What is it?
ADR is a method used to finalise family law property disputes without the need to go to Court.
ADR is beneficial because the decision-making power about how to resolve a dispute rests with the parties, with the assistance of their legal representatives (if any).
ADR has proven to be extremely beneficial for parties wanting to resolve their family law dispute, so much so that the Court has now built-in compulsory dispute resolution requirements before and during the Court process.
If a Court is required to make a decision for the parties, the Court is not bound to decide between each parties’ proposal. The Court has the power to make its own decision which neither party wants to see as an outcome.
The most common forms of ADR are:
- Negotiation; or
- Mediation/Conciliation; or
Whether one option is more appropriate than the others will depend on individual circumstances. Independent legal advice is usually required to determine which option would best suit the circumstances to resolve disputes regarding individual financial matters.
One of the most common forms of ADR is negotiation; discussing the issues in dispute and attempting to resolve the matters in dispute.
Negotiation can be as informal as ‘kitchen-table’ discussions or they could be formal negotiations with the assistance of legal representatives. In either case, negotiation is usually always the first step. It opens the lines of communication and negotiation assists the parties in determining what is agreed (if anything) and what are the remaining issues in dispute really are.
It is commonly understood that mediation is a form of negotiation that occurs in a controlled environment chaired by a mediator.
The mediator is independent of the parties and their legal representatives and it is their role to assist the parties to reach an agreement to resolve their issues in dispute.
It is not the role of a mediator to make decisions for the parties or make assessments on their position.
The parties still have complete control of the outcome of their mediation and the decisions to be made about the issues in dispute, with the assistance of their legal representatives. The mediator will help the parties explore avenues for settlement and raise matters that may or may not have been contemplated by the respective parties that might be considered by a Court.
It is standard practice and entirely appropriate that a mediation occur at some point during a family law property settlement matter if negotiations between the parties or their legal representatives is not productive or cannot achieve a settlement.
Arbitration is a unique form of dispute resolution because the process involves an out of Court settlement as such, however the parties do not have control over the outcome.
Arbitration is almost an expedited form of Court litigation where the parties submit their evidence and make their submissions about the outcome of a property settlement dispute. After reviewing all the material and submissions, the appointed arbitrator will make a decision (called an award) about the entitlement that each party will receive.
An arbitrator’s decision is binding and once the award is registered with the Court, it will have the same effect as if it were an Order made by the Court.
Both parties must agree to participate in Arbitration before the process can be engaged. Because Arbitration will produce a binding result for the parties, it is often the case that Arbitration is a quicker and cheaper option to resolving property settlement disputes without the need of Court litigation.
Arbitration may be suitable to parties in limited circumstances. You should consult with a legal practitioner to determine whether Arbitration is appropriate for you.
To Sum Up
Personal circumstances determine which ADR option might be best suited to the particular situation. We recommend that independent legal and financial advice be obtained to help determine which (if any) ADR option might be best suited for individual needs.
Our Family Law team at wilson/ryan/grose Lawyers can assist you with legal advice and assess your options to help you make informed decisions. Contact our office today to arrange a case assessment.
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