Alternative Dispute Resolution processes support separating families to resolve their disputes amicably and by agreement while avoiding the expense and stress associated with litigation.
In family law matters, the most commonly used alternative dispute resolution methods are Family Dispute Resolution (FDR) and Mediation. In both FDR and Mediation, parties have the opportunity to vent their concerns and contemplate a resolution to their family law dispute with the guidance of an independent facilitator.
Alternative Dispute Resolution processes aim to guide families away from the adversarial process of traditional litigation. The processes provide a forum for separating parties to cooperate and develop realistic and creative solutions to their family law disputes which are not otherwise available in court.
Family Dispute Resolution
Family Dispute Resolution (FDR) is a process in which parties are assisted to resolve their disputes relating to parenting or financial matters following a separation. FDR is a form of mediation and is conducted by FDR practitioners, who are highly-skilled registered professionals with specialist training in dispute resolution. FDR practitioners do not provide legal advice, rather their role is to guide and facilitate the parties’ discussions surrounding contentious issues. In parenting matters, FDR practitioners will provide a voice for the children and direct parties toward making arrangements that account for the children’s best interests. FDR practitioners are expected to be independent, impartial and fair to both parties.
There is a requirement under the Family Law Act that parties participate in FDR and make a genuine effort to resolve their dispute before applying to the Court for Orders relating to children. There is no clear definition of what constitutes a ‘genuine effort’ for the purposes of the Family Law Act. The FDR practitioner will make a case-by-case assessment and issue a certificate indicating whether the parties or each of them made a genuine effort to resolve the dispute.
A party applying to the Court for parenting orders must file the certificate provided by the FDR Practitioner along with their Court application. Parties are only excused from filing these certificates in exceptional circumstances such as where there has been family violence or where there are circumstances requiring urgent Court Orders.
FDR is a confidential, cost effective means of resolving disputes. We are supportive of clients attending FDR to try to resolve parenting disputes and refer them to organisations such as Relationships Australia Victoria, which has a number of experienced FDR Practitioners.
Mediation is a structured negotiation process in which a neutral third person known as a “mediator” assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. It is a confidential process which means that what is discussed during the mediation cannot be brought up by the other party at a later date in Court.
In family law mediations, the parties are usually represented by their lawyer, and the mediator is often an experienced barrister who is also trained as a mediator. The mediator will typically be jointly appointed, and their fees will be shared by both parties.
It is important to ensure that comprehensive preparation occurs before the mediation. In property settlement matters, preparation for a mediation might involve the parties obtaining sworn property or business valuations, exchanging financial disclosure, exchanging a schedule of assets and liabilities and even offers of settlement. In parenting matters, the parties might obtain a family report to guide negotiations, or exchange parenting proposals ahead of the mediation. Comprehensive preparation will give parties the best possible chance of resolving their family law dispute at mediation.
At Farrell Family Lawyers we have represented numerous clients at mediation. We take the necessary steps to ensure your matter is adequately prepared ahead of a mediation so that the event is productive. Mediation is very effective form of ADR, and disputes resolve through this process in the majority of cases. Please contact us if you would like to find out more about the mediation process.