Dispute Resolution: Why Your Matter May Not Need to Go to Court

Court can be a scary and emotionally draining experience. However, depending on your matter, you may be able to avoid going to Court altogether.

The Family Law Act 1975 specifies that in most circumstances (unless urgent circumstances, parents must meet with a Family Dispute Resolution Practitioner before they can commence Court proceedings.  

Often, even when these proceedings have commenced, parents will still be required to attend mediation. Likewise, parties who have financial and property disputes will also often be Ordered to attend mediation, although they are not required to undertake this step prior to commencing proceedings. However, mediation and Family Dispute Resolution aren’t the only dispute resolution options available.

In this guide we will discuss why your matter may not need to go to court and what the options available are.

Mediation

Mediation is a confidential process. It is overseen by an independent and impartial third party who facilitates negotiations between the parties in an attempt to resolve a dispute.

In most matters, mediation is a step that’s required by the courts. Due to this, mediation is an option you should explore before you attempt to begin court proceedings.

A mediator cannot impose a decision on the parties involved, however they can help the parties explore the relevant  issues in depth and attempt to reach the best possible conclusion. The mediation process usually involves the legal advisors of each party, but it can be conducted without legal advisors being present.

Mediation is a popular solution because it is often quicker than arbitration or litigation to resolve disputes due to its efficient nature. It is also more cost effective than those options and empowers parties to make their own decisions, leading to a more tailored outcome that suits the needs of both parties.

Family Dispute Resolution

Family dispute Resolution is compulsory in most parenting matters before court proceedings can be issued. With family dispute resolutions, a Family Dispute Resolution Practitioner will meet with the parties in an attempt to solve their disputes over arrangements for children.

In doing so, the Family Dispute Resolution Practitioner will make an assessment whether both parties have the ability to negotiate freely, or whether they are affected by matters such as safety or domestic violence.

If a Family Dispute Resolution Practitioner cannot assist the parties in resolving the dispute, they will issue a Section 60I certificate that allows parties to commence court proceedings.

The Collaborative Process

This is a shared commitment to resolving a dispute without court action and involves a series of informal meetings between both parties, their lawyers and other professional advisors.

As part of this collaborative process, parties are expected to work collaboratively, focusing on the future in an effort to solve problems amicably.

The service is bespoke, which means that it’s often more expensive, but offers swifter resolution and usually results in far less ill will between the parties.

Arbitration

As part of an arbitration process, two or more parties refer their dispute to an independent third party known as the Arbitrator. An Arbitrator is an impartial party who has had previous Court experience, such as a retired Judge.

Financial matters and property disputes are the most suitable for using Arbitration as a means of dispute resolution.

Arbitration is conducted in the same way a Court matter is run, inclusive of deadlines to be met, and submissions to be made. Less complex cases may be decided based on documentary submissions alone, whereas more complex cases may benefit from a judicial style of hearing.

The result of arbitration is known as the ‘award’ and is enforceable in the same manner as a court judgement.

Although arbitration is suitable for couples who have separated, it may not be suitable in instances where there is a significant disagreement over the facts of the separation.

However, arbitration can greatly reduce the emotional and financial stress involved in the process and the parties can control the timeframe for resolving the dispute.

Litigation

Litigation is the most confrontational form of reaching a resolution and does require going to court where a judge will  use his or her discretion to determine what is in the best interests of children and/or what division of assets is just and equitable. The adversarial system is incredibly slow and delays are very, very common. Due to the representation required and the expert witnesses that are often involved, the litigation process is also very expensive. Each path to resolution will suit different cases and matters. If you have a matter that you’re considering taking to court, please contact us on 07 3837 5500 or at enquiries@damiengreer.com.au to learn more about which of these processes may be best suited to your requirements.

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