How to resolve your dispute out of court

19-August-2017 Family Law By Mel Collins

One thing most Family Lawyers can agree on is that the Court system is broken. The Family Courts are struggling under the burden of funding cuts, fewer judges, and increases in the number of cases coming before them resulting in overcrowded lists and extreme delays in obtaining hearing dates.

Streeterlaw’s Family Law Accredited Specialist Simone Green said: “While going to Court is unavoidable in some cases due to issues of conflict, family violence, or other complex financial arrangements, a vast majority of cases before the Courts do not belong there. The large number of cases that are settled by consent partway through the legal proceedings without ever getting to a hearing, along with those that settle on the doorstep of the Court after years of expensive litigation, is evidence of this.”

“While Court should be considered as a last option, seeking legal advice from a respected and experienced Family Law specialist is essential. Seeing the right lawyer, with the right motivations to assist the client, can make all the difference in settling your matter early. Choosing the wrong lawyer can be counter-productive and extremely expensive.”

The good news is that there are many alternatives to going to Court which are quicker, cheaper and more considerate to the needs of the family as a whole. This is known as Alternative Dispute Resolution (ADR). The three major methods of ADR and their benefits are explained below.

1. COLLABORATIVE LAW

  • People who engage in collaborative law are overwhelmingly satisfied with the result.
  • It is a more respectful method to facilitate settlements with the help of a team of professionals. Unlike the traditional adversarial system of lawyers against lawyers, both lawyers work together to workshop with the clients’ various proposals.
  • Other collaboratively trained professionals such as a ‘coach’ also form part of the team to keep the process on track and to act as a go between for the clients. Accountants and financial planners (financial neutrals) may also be brought in to provide advice and options where necessary.
  • While each party remains separately represented by a lawyer, all meetings are held with everyone present. This reduces the unnecessary to-and-fro of correspondence ‘paper wars’ between lawyers which quickly add to the cost and delay for the client.
  • Another benefit of the Collaborative Process is that the lawyers are invested in settling the matter out of court; they must sign an agreement to cease acting for their client if the matter goes to Court.
  • Any agreement reached during the process is then filed with the Family Court of Australia who make a consent order without anyone having to step foot inside a court room.
  • Collaborative Law has strict guidelines and both lawyers must have engaged in the relevant training.
  • The Collaborative process is generally not suitable where there has been serious family violence or where the parties cannot be in the same room.

2. MEDIATION

  • This is a requirement in parenting matters prior to making an application to Court for orders (there are exceptions in cases of family violence or when a matter is considered urgent).
  • In the event that an agreement is reached in mediation, a parenting plan can be drawn up which, while not legally binding, might be all that is necessary in most families to provide a framework and structure around arrangements for the family. Where the legal certainty of an order is required, an application for consent orders can be submitted and the orders can be made out of Court.
  • Be cautious in engaging a mediator to facilitate a property settlement without both parties having a lawyer. Many mediators are not lawyers so they cannot advise you of your legal entitlements.
  • For more legally complex matters, or for matters which are not suitable for Collaborative Law, a lawyer-assisted mediation is an effective option to try and settle a dispute prior to engaging in Court proceedings. Often matters can settle on the day and Terms of Settlement can be drawn up and filed with the Family Court as an application for consent orders within days of the mediation. These mediations can occur as shuttle mediations, that is, the parties do not have to be in the same room if not suitable and the mediator will ‘shuttle’ between rooms to discuss issues with the parties and their solicitors.

3. ARBITRATION

  • Arbitration is gaining in popularity in Family Law disputes.
  • Arbitration is essentially a private ‘hearing’ before an arbitrator who acts in the role of a judge, outside of the Court system.
  • The parties are bound by the decision and that decision is registered with the Court and becomes binding as an Order.
  • This is a good option for a speedier result in circumstances where the matter would not settle by way of mediation or negotiation.
  • There are significant costs to arbitration as it runs similarly to a Court hearing but it is a faster way to resolve a dispute.

We invite you to make an appointment with our Accredited Specialist Simone Green to provide you with advice tailored to your individual situation. Please contact the Family Law experts at Streeterlaw on 81970105 or email advice@streeterlaw.com.au.

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