Music to any separation lawyer’s ears is the prospect of parties successfully participating in alternative dispute resolution. There are many forms of conflict resolution that can take place with some including:
- Family Dispute Resolution (FDR)
- Conciliation
- Mediation; and
- Arbitration
Family Dispute Resolution
The first process a separation lawyer will advise of (when the main issue is parenting) is Family Dispute Resolution (FDR). This form of mediation is conducted by a FDR practitioner rather than a mediator, arbitrator, or Judge. However, the role of an FDR practitioner is not to provide legal advice (as would a separation lawyer) but instead to ensure all parties’ concerns are voiced and in parenting matters that there is consideration of the child’s best interest. In fact, FDR is mandatory before parties can apply to the court for a ‘Part VII order’ which deals with parental responsibility and provisions relating to parenting orders. It is important to note there are a few exceptions to this rule in operation such as s 60I(9) which addresses instances of family violence.
Conciliation Conference
Another option that engages with the court process more is a conciliation conference. This form of dispute resolution involves engaging a separation lawyer to assist in resolving a dispute between you and your ex-partner. Unlike the in-formalities of family dispute resolution, a conciliation conference is heard before a Registrar who will give procedural orders about what is to occur next in your court proceedings. However, a separation lawyer will be able to inform you that in order to comply with the procedural rules of this court event, each party has to file and serve 3 documents. These documents are recognised as a financial questionnaire, genuine steps certificate and either an Initiating or Response to initiating application depending on whether you are the applicant or respondent.
Mediation
Should the matter be difficult to resolve, you and your ex-partner could seek assistance from an independent third party. The meeting that would take place between all parties is referred to as mediation and can occur either before or after court proceedings have started. A separation lawyer will advise this as the most attractive option as it can be a more affordable and timely option for the parties. A mediator will oversee the negotiations between the parties but ultimately cannot impose a decision unless agreed to by both parties (i.e. by consent). If an agreement is reached, then a separation lawyer will be able to assist in drafting ‘consent orders’ which can be passed by the Court and made legally enforceable/binding. Further, a mediation is confidential, and so is all the information disclosed during. This means that such information cannot be used after in active court proceedings.
Arbitration
If all else fails and you are unable to reach an agreement with your ex-partner, you may seek to attend arbitration. An arbitration is run by an Arbitrator (who is usually a senior legal practitioner or former judge). The arbitrator will consider evidence presented before them on behalf of both parties before making a decision. Importantly, arbitrators cannot deal with parenting issues and therefore they are entirely restricted to disputes about property. Like mediation, the costs tend to be less and the timing quicker than if your matter were to proceed to court. The level of formality can be adjusted as well, and this usually depends on the arbitrator’s preference.
So Why ADR?
Whilst the lines may seem blurred at times and the options overwhelming, alternative dispute resolution is a common and just way to resolve disputes in a timely and cost-efficient manner. Often parties are unaware of the array of negotiations that a separation lawyer will advocate for before seeking to prepare for a hearing.
