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Alternate Dispute Resolution in Family Law

Published on December 15, 2023

    unified-lawyer-kerry-ann-aguilar

    About the Author

    Kerry Anne Aguilar

    In 2017, and whilst Kerry completed her law degree and practical legal training, she began working at a Community Legal Centre and private law firms in Western Australia.

    In 2017, and whilst Kerry completed her law degree and practical legal training, she began working a... Read More

    unified-lawyer-kerry-ann-aguilar

    Kerry Anne Aguilar

    Author
    Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and financial matters including but not limited to property settlements, spousal maintenance, child support agreements, prenuptial agreements, cohabitation agreements and postnuptial agreements.

    Key Takeaways:

    • Alternative Dispute Resolution (ADR) is a less adversarial technique for resolving disagreements outside of court.
    • There are many different methods of alternative dispute resolution, including family law mediation, family dispute resolution, arbitration, expert determination, conciliation, and collaborative law, each offering flexibility and tailored solutions Unified Lawyers can provide legal advice along with ADR processes to help clients resolve their disputes.
    • ADR involves working with impartial professionals to reach mutually satisfactory resolutions. While effective, agreements reached may require additional steps like consent orders to be legally binding.

    Navigating family law disputes is not only emotionally draining and overwhelming but can also be financially taxing and time consuming. While it can sometimes feel like you’re going to be at loggerheads with your former partner forever, there are less adversarial ways to resolve these matters. These less adversarial approaches to resolving legal matters fall under the umbrella of Alternate Dispute Resolution (ADR).

    ADR involves parties working with an impartial person to help them find a resolution for their matter, where they can avoid going through litigation proceedings.

    In this article, we’re going to explore the ADR approach, including discussing the various methods that can be used to resolve disputes, the benefits of this approach to dispute resolution and how our family lawyers Sydney can help.

    What is alternate dispute resolution?

    Alternate dispute resolution (ADR) serves as a technique for resolving disagreements outside of Court.

    It involves employing an impartial third party, sometimes known as an ADR practitioner, to assist parties in reaching a consensus and aims to offer a procedure that allows parties retain control over the results when they are finding it difficult to come to an agreement privately.

    By utilising certified professionals to evaluate disputes, provide guidance and avoiding Court proceedings, the parties can also avoid the unpredictability and inflexibility of Court proceedings and the outcomes of these matters.

    In the Australian family law system, people are encouraged to take all steps possible to avoid applying to the Federal Circuit and Family Court of Australia for a resolution when a dispute arises. In some legal matters, like matters involving parenting cases and children, participating in a type of ADR known as Family Dispute Resolution, is actually mandatory.

    While you may be able to reach agreements through various alternate dispute resolution methods, it’s important to note that these cannot be enforced on the parties without further action, such as creating consent orders that are legally binding.

    Unfortunately, alternative dispute resolution may not work, and this may mean that the matter will still advance to Court proceedings.

    Types of ADR

    There are many different types of alternative dispute resolution methods in Australia, including:

    • Mediation
    • Family dispute resolution
    • Arbitration
    • Expert determination
    • Conciliation
    • Collaborative law

    We’ve provided a brief summary of each of these types of ADR below:

    Mediation

    This is a voluntary process where a neutral third party, the mediator, helps couples discuss and negotiate their differences to reach a mutually acceptable agreement. It’s often used to resolve issues regarding parenting, property, and financial disputes.

    Family Dispute Resolution (FDR)

    A specific type of mediation required by Australian family law before applying to the Court for parenting orders. FDR practitioners, accredited by the government, facilitate discussions between parties to develop effective parenting plans and resolve conflicts.

    Arbitration

    This is a private, binding process where an independent third party, the arbitrator, makes a decision about the dispute after hearing arguments and evidence from both parties. It’s typically faster and more flexible than court proceedings and is often used for financial disputes.

    Expert determination

    This involves an independent expert who is appointed by both parties to decide on specific issues. The expert’s decision is typically binding and based on their specialised knowledge.

    Conciliation

    This is a voluntary process where a conciliator meets with the parties to identify disputed issues, develop options, consider alternatives, and attempt to reach an agreement. Conciliators may provide advice on the law but do not make decisions for the parties.

    Collaborative law

    A non-adversarial legal process where each party has their own lawyer, and all parties commit to resolving disputes without going to Court. It involves open communication and shared information to negotiate a settlement that addresses the needs of both parties and their children.

    Each of these options provides flexibility and for parties to maintain a level of control of the outcome of their matters.

    Benefits of alternative dispute resolution

    Alternative dispute resolution can be extremely beneficial for a number of reasons, including:

    • Cost savings – Court proceedings can be very costly;
    • Time efficiency – Court proceedings can take a long time due to backlogs of other matters and general legal processes;
    • Flexibility – The processes and the types of resolutions and arrangements made from these forms of ADR can be tailored to suit the unique needs of the individuals involved;
    • Maintain control over the outcome – Each party can play an active role in finding an appropriate solution; and
    • Aiding in preserving relationships between parties – Finding a way to cooperate with one another can encourage a better relationship between the parties.

    Another benefit is that ADR can be used to resolve a wide range of matters in family law, including:

    • Parenting arrangements, such as custody and living arrangements of children, visitation schedules, and parenting responsibilities;
    • Property and financial settlements, like issues relating to the division of property, assets, and debts following a separation or divorce;
    • Child Support including negotiations concerning the amount, duration, and manner of child support payments;
    • Spousal Maintenance such as disputes over the need for, amount, and duration of spousal maintenance (alimony) payments;
    • Relocation Issues like when a parent wishes to relocate with a child, which may impact the child’s relationship with the other parent;
    • Parentage disputes such as issues concerning the determination of a child’s legal parentage, which can affect child support, custody, and inheritance rights;
    • Adoption and surrogacy can be made easier using ADR as matters like creating adoption and surrogacy arrangements, ensuring the agreement aligns with legal requirements and the best interests of the child are taken care of; and
    • Grandparent and rights of the extended family, where disputes involving the rights of grandparents and other extended family members to have contact or a relationship with children.

    It’s important to note that ADR may not be suitable for all family law matters, especially in cases involving significant power imbalances, non-disclosure of assets, or serious allegations of abuse. In such instances, court intervention might be necessary to ensure fairness and protect the rights and safety of all parties involved.

    What is the ADR process in Australia?

     

    The ADR procedure in Australia encompasses the selection of a suitable method, the appointment of a competent practitioner, and participation in the process to attain a resolution.

    Below is a general overview of each of the types of alternate dispute resolution methods we’ve mentioned in this article:

    Mediation Process

    • Parties select a neutral mediator and agree on mediation terms.
    • During sessions, each party shares their view, aided by the mediator’s facilitation for mutual understanding.
    • Mediator helps to direct negotiations between parties to find common ground.
    • If agreed, a written, signed resolution is made. If not, other ADR methods or litigation may be pursued.

    Family Dispute Resolution Process

    • Parties usually attend a pre-mediation session to learn about the process and how to prepare.
    • An accredited FDR practitioner leads the discussion, focusing on parenting and family disputes.
    • Agreements can become a ‘Parenting Plan’ or formalised through Consent Orders. Without agreement, the practitioner issues a certificate for potential court proceedings.

     

    Arbitration Process

    • An independent arbitrator is chosen by the parties.
    • Parties present evidence and arguments in a formal setting akin to Court.
    • The arbitrator examines evidence, listens to arguments, and may inquire further.
    • The arbitrator’s decision is legally binding and enforceable, like a Court judgment.

    Expert Determination Process

    • Parties jointly appoint an independent expert with relevant expertise, agreeing on their role and determination scope such as the issues, processes and binding decision nature.
    • Parties submit relevant documents, evidence, and arguments to the expert.
    • The expert reviews submissions, requests additional information if needed, and may meet with parties.
    • A written, usually final and binding decision is provided by the expert, based on evidence and expertise, subject to any appeal/review terms.
    • The decision can be enforced like a Court judgment, depending on the agreement and dispute nature.

    Conciliation Process

    • Choose a conciliator with relevant expertise. Their role is more advisory than a mediator’s.
    • Parties outline their issues; the conciliator identifies disputes and suggests possible solutions.
    • The conciliator can offer advice and propose solutions.
    • The goal is a non-binding agreement, formalised only if put into a written contract.

    Collaborative Law Process

    • Parties and lawyers agree to resolve disputes outside court, often signing a commitment agreement.
    • Professionals like financial advisors, child specialists, and psychologists may join, depending on issue complexity.
    • Four-way meetings between parties and lawyers are held, promoting open communication and problem-solving.
    • Discussions are interest-based, centred on each party’s needs and objectives, not just legal positions.
    • Agreements are formalised into legally binding documents.
    • These agreements are usually submitted to a court for approval, making them enforceable orders.

    In all these ADR processes, the emphasis is on voluntary participation, confidentiality, and aiming for a mutually satisfactory resolution. The specific procedures can vary based on the nature of the dispute and the preferences of the parties involved.

    How long does an ADR take?

    The length of an ADR procedure fluctuates based on aspects like the complexity of the dispute, the readiness of the parties to cooperate, the ADR method and the availability of ADR methods. Generally, ADR is faster than Court proceedings, but the more intricate the dispute, the longer it may take to resolve.

    When should you not use ADR?

    Alternative Dispute Resolution may not be suitable in cases involving domestic violence, child abuse, or when a substantial power imbalance exists between parties.

    A significant power imbalance can adversely affect the efficacy of ADR, as it may exacerbate pre-existing imbalances and compromise the equity and neutrality of the ADR process.

    Considering the sensitive nature of child abuse cases, ADR is not advised as it may fail to provide the required safeguards and protection for the child. These cases require a thorough investigation and legal intervention to ensure the safety and well-being of the child.

    Who can help you?

    Having legal support from a divorce and family law specialist can make any of the alternate dispute resolution methods a lot easier to manage. At Unified Lawyers, our family and divorce lawyers Sydney are here to help you.

    Our family law services and experience covers a wide range of family law matters and we’ve worked with countless people in Australia to resolve their disputes as efficiently and effectively as possible.

    We pride ourselves on our empathetic understanding and our personalised service. We will work with you to understand your situation and to find the best outcome possible for you.

    Our family law services, including advising, guidance and support throughout the alternate dispute resolution process are available to people all over Australia, so if you’re facing a family law dispute get in touch with us here at Unified Lawyers.

    You can book a free, no obligation consultation by calling us on 1300 667 461 or using the button below.

    unified-lawyer-kerry-ann-aguilar

    Kerry Anne Aguilar

    Author
    Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and financial matters including but not limited to property settlements, spousal maintenance, child support agreements, prenuptial agreements, cohabitation agreements and postnuptial agreements.

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