Don’t Litigate, Mediate!
One of the misconceptions about the law that some people may have is that the courts are often the only forum through which disputes can be settled within our legal system. This is most definitely not the case. The Australian judiciary holds a strong view that parties to a dispute should attempt to resolve their matter outside of a courtroom before having to rely on one. This can be done through various different mediums, such as through mediation, arbitration or conciliation.All of these processes are used as a form of Alternative Dispute Resolution (ADR) and are seen as positive steps that parties can take towards a resolution to their issue without having to resort to litigating the matter. Mediation is the process used most commonly to effectively resolve Family Law matters without litigating.
The Mediation Process
Mediation is an ADR process used throughout Australia to try and resolve disputes before the parties engage the assistance of the Court to settle their differences. When parties agree to meet for mediation, it is seen as a neutral forum where both parties can prepare and lay out all their issues on the matter. Here, these matters can be discussed and this could potentially allow the parties to come to some sort of agreement. To facilitate this process, a single independent mediator is appointed. Unlike a judge or magistrate whose purpose is to determine the legal merits of a case, the mediator is impartial and primarily present to guide positive negotiation between the parties.
Benefits of Mediation
There are several very important benefits that mediation provides as an alternative to litigating a matter. First, both the costs and time required to resolve a matter through mediation are almost always greatly reduced when compared to the costs of litigating the same matter. The extensive costs of preparing for interim hearings or even a final trial can be avoided, as can the potential costs you may need to pay to the other party in the event that your case is not successful before a court. Most importantly, the parties are the decision makers and control the outcome of the agreement. This flexibility and relative lack of formality that mediation offers can make it a lot more comfortable than a courtroom environment, which in contrast is incredibly formal and can be an extremely stressful place considering that both parties are leaving their dispute to be decided solely by a third party. Finally, decisions made in mediation may be drafted into a binding legal document such as Court Orders or a Binding Financial Agreement.
Family Law Mediation
Resolving your dispute outside of a court is one of the fundamental principles in the sphere of family law, and mediation is arguably the main forum through which this is achieved. Mediation is a form of Dispute resolution and pursuant to the Family Law Act, specially accredited practitioners are required to conduct family law related mediations. It becomes an incredibly important tool that is often the difference between a smooth resolution to a matter or a very long and protracted legal battle which sees neither party getting their wishes fulfilled and both parties incurring often unnecessary legal fees. Since the mediator’s role is to be impartial while also helping progress the negotiations, they can often fulfil the role of a counsellor for both parties when in a family law setting. Their ability to assess and understand both sides of the argument can often be crucial in securing an agreement between the parties, particularly when very emotional topics such as parenting matters or sentimental property is involved.
Litigation should be the last resort for any unresolved legal issue. This maxim is especially paramount in Family Law. Parties to proceedings who have failed to make a genuine effort to resolve their differences prior to engaging the assistance of the Court are oftentimes sent away to mediate or in the alternative, had their application dismissed entirely. This can be not only a waste of time, but a waste of money and can be avoided where mediation is employed at the first instance. Most importantly to note, the Family Law Act requires that parties disputing issues in relation to where the children live and how they spend time with the other parent must participate in mediation and make a genuine effort to reach a negotiated outcome without the assistance of the Courts.
ABKJ Lawyers are experts in all matters of Family Law and our resident family lawyer, Michelle Felderhof, is an Accredited Family Dispute Resolution Practitioner. If you have any issues which you think may think require mediating, please do not hesitate to contact ABKJ Lawyers on 07 5532 3199.