What is dispute resolution?
Dispute resolution (DR) refers to a range of different services designed to help you resolve disputes following separation or divorce and improve your relationship with your former partner/other party. There are a number of different types of Dispute Resolution including:
Mediation gives you and the other party an opportunity to discuss your family law dispute on your own terms, but with the assistance of someone neutral who can help you to focus on looking forward and achieving a resolution. By reaching an agreement between you, that both parties are mutually satisfied with, it improves the likelihood that what you decide on will last into the future and will reduce conflict about interpretation of arrangements, particularly time with children.
While there are many community centres that offer mediation, our experience shows that private mediators and/or attendance of lawyers at mediation tend to have greater success in achieving an outcome because the personal conflict or negative feelings towards each other is avoided by having a third-party advocate for you and explain your position and goals.
Mediation can be conducted at any time throughout your family law matter, even after Court proceedings have commenced, as a means of ending your dispute. If you are concerned about your safety or a power imbalance, we can organise to attend mediation via shuttle, where you do not come into contact with the other party.
For more information: https://www.fcfcoa.gov.au/fl/mediation
Family Dispute Resolution
The Federal Circuit and Family Court of Australia requires you to attend Family Dispute Resolution (FDR) before commencing proceedings, unless exceptional circumstances apply to you. FDR is provided by an independent facilitator, called a Family Dispute Resolution Practitioner (FDRP) who gives you an opportunity to come to an agreement in the form of a parenting plan, binding court orders or financial agreement. If you are unable to reach an agreement, you are issued a certificate indicating no resolution could be reached outside of Court. FDRPs are trained to assist you in resolving your dispute. They do not provide legal advice or make decisions in your matter.
Parenting plans are not enforceable by the Court and are essentially a “handshake agreement” between you and the other parent. Agreements can also be formalised by way of binding Court Orders, known as Consent Orders. They are legally binding and can be upheld by the Court if either party contravenes them without a reasonable excuse.
Children can be involved in Family Dispute Resolution through a child inclusive process. This is not offered by all FDRPs and the appropriateness of children having input in this process will depend on factors such as their age and maturity.
If you and your ex-partner can come to a compromise, FDR is a more affordable, timely and less stressful than engaging in Court proceedings.
For more information: https://www.fcfcoa.gov.au/fl/family-dispute-resolution
Court-based Family Dispute Resolution – Parenting Matters
The Court can refer your matter to FDR within the Court at any point in your proceedings. The two-part confidential process gives you an opportunity to resolve your dispute before a Judge is asked to make a determination for you. The Court wants to afford you the opportunity to have control over your circumstances and participate in making decisions which will impact you and your children into the future.
Part 1 tends to run for around 45 minutes and is usually conducted via phone or video conference. You (and your legal representative) will attend a conference with a Judicial Registrar. The purpose of this is for you to meet the Registrar, who will explain the process and next steps to you. The Registrar will also set out expectations for Part 2, and any material you should bring to assist in that conference. This is your opportunity to ask any questions about the process or relay any concerns you may have about engaging in Part 2 of the process.
The Registrar and/or Court Child Expert will open Part 2 by discharging their technical obligations and explaining the process to all parties. They will then confirm any areas of agreement and the outstanding issues to be addressed. The rest of the day will be spent negotiating and documenting any agreement that is reached. Negotiation can happen either jointly or via shuttle depending on which scenario will be more conducive to productive discussions.
If an agreement is reached, the Registrar can make the relevant orders on an interim or final basis, and you will not be required to appear before a Judge for determination. Should agreement not be reached, your matter will progress to the next stage of the Court process.
Discussions during an FDR are confidential and therefore cannot be used in Court.
This fact sheet is for people who have been ordered to attend a Family Dispute Resolution (FDR) conference in the Federal Circuit and Family Court of Australia.
For more information: https://www.fcfcoa.gov.au/fl/pubs/cb-fdr
Court-based Family Dispute Resolution – Property Matters
A Conciliation Conference is conducted either by a Senior Judicial Registrar, a Judicial Registrar or a Deputy Registrar (Registrar) exercising delegated judicial powers under the Family Law Act.
At the conference, the Registrar will look at the case objectively and explore options for settling your case without any further legal action. A Registrar cannot give legal advice, however they will speak with you about the legal principles that are applied when deciding cases and help you understand the benefits of reaching an agreement.
The settlement negotiations during the conference are privileged. This means that what is said in the conference, or offers that are made, cannot be used in Court later. There are some exceptions to this privilege. For example, court staff are required by law to report a suspicion or risk of child abuse and violence or threats of violence to the relevant child welfare authority.
At the conclusion of the conference, the Registrar will complete a Certificate of Dispute Resolution recording whether an agreement was reached in whole or in part, whether you (and the other party) attended, and whether you (and the other party) used your best endeavours to reach an agreement. If an agreement is reached the Registrar will make binding orders.
Arbitration differs from the mediation process as the appointed Arbitrator will be presented arguments from each party and make a determination or “award” based on the facts presented, to resolve the dispute. In contrast, mediators will only encourage and facilitate discussion between parties rather than have a hand in making a decision. Arbitrations can be undertaken privately, or by Order of the Court.
Many Arbitrators are ex-judges and barristers who are experts in their field and must have completed specialist arbitration training. They must also comply with procedural fairness and inform parties of anything that could lead to potential bias.
Only financial disputes are dealt with through the arbitration process, such as property settlements, spousal maintenance and superannuation splits. Both parties must consent to engage in Arbitration.
For more information: https://www.fcfcoa.gov.au/fl/arbitration
Are you looking into mediation as an alternative dispute resolution? Please get in contact with our office at +61 2 9091 0220 and we will guide you on how to get started and what the mediation process involves. Often helping families in the Eastern Suburbs, Inner West, and Northern Beaches with mediation, Reid Family Lawyers is ready to help you with professional legal advice and support.