Mediation is a form of alternate dispute resolution.
Other forms of alternate dispute resolution include collaborative law and arbitration.
A summary of each is set out below.
Essentially mediation is a conference or a series of conferences or meetings generally with a facilitator called a mediator, or in the case of parenting disputes a Family Dispute Resolution Practitioner (who facilitates the negotiations between the parties) with a view to assisting them reach an agreement about all or as many of the issues in dispute.
Like all forms of alternate dispute resolution, mediation is cheaper and quicker than proceeding to Court.
Many people who use mediation find that as they were involved in the decision making and could express their views and concerns, they felt heard, had greater control over what was ultimately agreed upon and generally report feeling more satisfied with the outcome.
Some mediations are relatively straightforward. There may be relatively straightforward assets owned by the couple which are more readily identified and can be valued, and the parties can work through reaching agreement about for example the distribution of those assets, or the care arrangements for their children. This can be done using organisations such as Relationships Australia, CatholicCare or Unifam.
For some couples, with more complicated assets such as trusts, underlying structures or tax issues, a great deal of propriety work might be required prior to embarking on mediation, so that there is:
- an agreement about what the assets of the relationship consist of;
- agreement on what the values of each of those assets is; and
- Identification of any taxation issues in connection or arising from those issues.
There may be more complex areas of law and a disagreement between each party’s legal team as to how that law should be applied in their respective client’s case.
In this type of matter, a more formal mediation may be appropriate, including sometimes briefing Counsel and making detailed submissions. The parties together retain as their mediator a legal practitioner such as a retired Family Court Judge, Senior Counsel or Queen’s Counsel with specific mediation skills.
The mediator will facilitate the negotiations and may at times, where requested, provide an evaluative assessment of each party’s case, relay offers between the parties, and help the parties continue to exchange offers and counter-offers and work towards resolving many if not all of the issues in dispute.
As the mediator is not in Court as a Judge, Orders cannot be made on the day but the parties can undertake to formalise the agreement reached in legally enforceable format.
Arbitration is also an alternate dispute resolution method, and in arbitration, the arbitrator acts as the Judge and listens to the submissions of each of the parties or their legal representatives. In some cases, the Arbitrator will read written submissions prepared by each party and will identify all of the assets from an agreed balance sheet which lists any issues on the law raised by both or either parties to reach a binding decision.
That binding decision is called an award.
Arbitration can be on the papers, in other words, in the absence of the parties and their legal representatives, clearly, carefully crafted submissions in writing must be presented, and both parties solicitors need to work through an agreed timetable so that the arbitrator has all of the requisite information he or she requires so as to discharge their professional obligation as Arbitrator.
Sometimes arbitration may require cross-examination. The parties will be required to attend and Counsel would normally be briefed.
Other options include personally attending without the need for cross-examination and making both written and oral submissions to the Arbitrator.
Arbitration enables the parties to expedite in a binding format a property settlement and reach an agreement cheaper and quicker compared to commencing Court proceedings.
Unlike Court proceedings where parties do not get to pick their Judge, here the parties can select what arbitrator they wish to use and who each believes would be a good fit for their case.
Arbitration will be appropriate for a majority of litigants, including those with complex asset pools, smaller asset pools and those in financial distress who cannot afford to commence Court proceedings.
At Atkinson Vinden we see arbitration as a tremendous adjunct for family law clients, and we anticipate that it will be readily embraced by the profession and litigants.