Forget Litigation…Try Mediation!
Recently, the Attorney General announced that the Family Court and Federal Circuit Court will be combined in an attempt to reduce waiting times, which can be up to a year and a half for a hearing. This is another reminder that litigation, (going to Court), in family law matters is often lengthy, expensive and stressful, but there can be alternatives to going through this process.
The first step in a family law dispute is usually to negotiate with your ex-partner. Negotiations are informal and occur between the parties, or via lawyers if the parties are legally represented. The benefit of negotiating a solution is the informality of the process, and it is indeed less costly and faster to send an email or make a telephone call.
When people reach the stage of splitting up from their partner however, they often feel they have exhausted the ‘negotiation’ possibility.
Mediation is also an informal process, but involves the presence of a neutral party (the mediator) to assist the parties in resolving a matter. The parties need not be legally assisted or have any face-to-face interactions during the mediation.
‘Family dispute resolution’ is a form of mediation in family law disputes involving children, and is compulsory for most people who want to apply to the Court for Orders. Mediation can however, also be valuable for people involved in a dispute about the marital property.
The benefits of mediation are:
- It usually occurs more quickly than waiting for a Court date, because it can be arranged through a number of public and private providers;
- It is usually cheaper than Court, with the price varying according to the chosen mediation service. This is because there are no Court fees, it is a shorter process, you may not need the same level of legal assistance because of the lack of formality, and there is no need to pay for expert witnesses, among other reasons;
- Parties have more flexibility to arrive at creative solutions to fit their personal circumstances than if they let the Court decide;
- Mediation promotes co-operation between the parties, which can be beneficial for their future relationship (which is particularly important where children are involved);
- The parties are more likely to feel personally invested in the agreement reached than a Court imposed Order, due to the co-operative nature of mediation. This encourages compliance with the agreement;
- Mediation is often less stressful for the parties than Court, due to the less formal format;
- There is a higher level of privacy in mediation than there is at Court.
The major disadvantage of mediation is that it is not suitable for all parties. This can be the case if there is a marked power imbalance in the relationship, for instance in the case of family violence. If the relationship between the parties has broken down to a large extent then mediation is unlikely to be successful, as it requires some level of co-operation. Another disadvantage of mediation is that there is no guarantee of a resolution to the dispute, as there is when the parties apply to Court. This said however, mediation is unlikely to be a complete waste of time. Even if no formal agreement is reached, it can help to narrow the scope of the issues in dispute, which can save time and money if the matter goes to Court.
If mediation is suitable for your individual circumstances, it is always worth attempting before filing with the Court. If you would like to find out more about whether mediation is suitable for you, then please do not hesitate to contact us, we would be more than happy to assist.
Koffels Solicitors & Barristers