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 Don't want to go to court? Alternative dispute resolution |
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Just as the name implies, alternate dispute resolution is an alternative to the court process designed to assist parties to resolve their dispute without the need to go to hearing. Only a small percentage of family law disputes actually run to a final hearing - approximately 5% - but although most are settled, they are often settled far too late, after costs have been unnecessarily incurred and relationships irreparably fractured. The sensible use of alternate dispute resolution (ADR) mechanisms may reduce delay and expense, achieve better resolutions, and preserve continuing relationships which will be important in disputes involving the ongoing parenting of children.
There are a number of advantages to ADR, including:
- opportunity to settle your dispute without going to court
- you can make own decisions
- less formal
- private
- less stressful
- less expensive
- opportunity to express your point of view openly and try to work out a solution that you both agree on
- your continuing relationship as parent is likely to work better as the lines of communication are opened
Methods of ADR take many forms. The form most frequently used is that of negotiation. You may be able to resolve your dispute with the other party by negotiation, without professional help. Or, negotiations can be undertaken between the lawyers representing you and the other party. Many matters can be resolved through skilled negotiation without a court application ever being made.
The Family Court offers a range of ADR services including counselling, mediation, and conciliation. By linking ADR mechanisms to courts parties are encouraged to take advantage of these means to reach agreement before full scale judicial hearings take place.
The Family Court is specifically designed to aid parties in a dispute to resolve that dispute before the matter comes to trial. Its processes ensure that the parties are at least exposed to the opportunity of resolving their dispute by alternative means at all times throughout the litigation process. The court provides free counselling/mediation services for parties to attend with a family and child counsellor/mediator in an effort to identify the issues in dispute and attempt to find a mutually agreeable solution. If parties have already made an application concerning children to the court the court will direct them to attend court counselling as the first step in the process.
Another dispute resolution mechanism which the court incorporates is the Conciliation Conferences. A Conciliation Conference is run by a Deputy Registrar (a senior lawyer) who discusses with the parties and their lawyers the legal principles which are applicable to their case and explores all possible options to resolve the matter at that time.
There are also a number of other court approved mediation services which can assist parties. In these processes a trained mediator (who is an independent third party) facilitates a conference between the parties, allowing both parties the opportunity to air their points of view. The mediator is then able to identify the issues and encourage the parties to come to their own agreement.
The mediation conference offers parties in a dispute an informal, flexible forum in which they can raise issues, discuss concerns, ventilate their feelings and attempt to find consensual solution. It has proven to be a worthwhile, effective alternative to litigation, and one which many parties find to be less stressful and more satisfying.
Generally, what is discussed in counselling and mediation is confidential (except where child abuse has been disclosed) and cannot be used in evidence. However, whilst such sessions are confidential, it is possible that either or both parties can take an admission and use it to discover other evidence which can be used as evidence should the matter eventually end up in court.
The use of mediation will not be appropriate in every situation. The success of mediation depends on both parties being able to participate in the conference with equal bargaining power and access to the same information. If one party has a superior bargaining power the outcome of the mediation may be unfair. For example, in cases where one party has been subjected to repeated instances of domestic violence there is a greater likelihood that person may be intimidated by the other party and settle for a situation which is grossly unfair. The court is obliged to only order mediation in an appropriate case. Where it is clear that the matter is incapable of settlement or inappropriate for mediation.
The solicitors at Watts McCray are skilled in Family Law negotiation and mediation and can offer you extensive advice in this area.
February 2001
February, 2001
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