How can I resolve my family law matter without going to Court?
If you and your ex can solve the problem without going to Court, then you have a hand in the solution. You each have a say. You can be heard. You each have some control over the outcome. If the two of you reach a solution, you are much more likely to do what you agree to do.
Why shouldn’t I just go to Court?
If your dispute goes the Court, you lose that level of control. You and your ex are saying to the Judge – we cannot solve this. So, the Judge makes the decision for you.
These are the problems with going to Court:
It costs a lot to go to Court, in terms of money and in terms of emotion.
You will put on paper things which cannot be un-said. So will your ex.
Going to Court is a process and it takes time.
You may not like the outcome. Your ex may not like the outcome. One or both of you may appeal the decision which will mean your matter will be further delayed in being finalised.
There are various methods you can use to reach agreement rather than going to court. These are often called Alternative Dispute Resolutions (ADR) which is much like it sounds; it is an alternative resolution to disputes and is an alternative to going to Court.
Some ADR options are:
Involve a wise elder
Never underestimate the power and wisdom of getting a wise elder on both sides of the dispute involved. They will both have years of experience at sorting out life’s problems and making impossible situations work.
Negotiation
Negotiation will work if you and your ex are both looking for a solution which is win-win i.e. for the best of all concerned.
You talk about the problem.
You brainstorm solutions.
You make offers.
You try things.
You keep coming back to negotiation until you have a solution which works.
You can negotiate directly with your ex, or via solicitors. In family law, sometimes emotions can get the better of you or you may be experiencing some conflict with the other party and it can help to have a solicitor to negotiate on your behalf.
If you enter negotiation with a ‘take no prisoners’ approach, this is likely to escalate the conflict and can turn a low-level conflict into an all-out war, ultimately leading to court proceedings.
If your dispute is long running, and the trust between you and your ex is at an all-time low, then negotiation might not be the best option for you.
Collaborative Practice
We work hard at building good relationships with other family law practitioners (solicitors and barristers) and other professionals including accountants, valuers, and counsellors.
Via collaborative practice, solicitors and their clients agree to work together with a view to discussions leading to the best possible outcomes for all concerns. At the outset, the solicitors and the parties agree that their dispute will not go to Court, and no one will threaten Court proceedings.
Like negotiation, collaborative practice is beneficial where parties have a vested interest in maintaining a relationship with the other party into the future (e.g. co-parenting).
Collaborative practice enables open communication and peace between the parties through written communications, negotiations, round table discussions and sometimes the assistance of third parties such as the parties’ accountants, valuers, financial advisors, counsellors or whoever is needed to help the parties.
Mediation
Experienced solicitors will almost always suggest mediation as the next step if negotiation has not resolved your dispute.
Sometimes you must mediate e.g. if you want to make an application to the Court you must at least attempt mediation (although there are some circumstances e.g. urgency, when you can apply without this.) Sometimes if you have started the Court process, the Court will order mediation.
Mediation can take place:
Around the table i.e. face to face;
By telephone; or
By videoconferencing.
A mediator will facilitate the process of negotiation and discussions. The parties are responsible for defining the problem, generating options, and finding solutions.
Mediators remain neutral and impartial during mediation. A good mediator will help to build a relationship of respect and trust with the parties.
The mediator will encourage both parties to have their say, to say what is on their minds, to make concessions, and to come to an agreement that both can live with.
Mediation allows both parties to be heard and to feel listened to.
Mediation has an extraordinary success rate – we say 80% or more of the matters we see going to mediation, settle at mediation or very shortly after mediation.
But if you do not settle at mediation, do not despair – there are more ADR options for you.
Arbitration
Arbitration is a formal process where an ‘award’ is delivered at the end of arbitration that is as binding on the parties as a Court order.
The benefits to the parties of arbitration over Court are many, and include:
The process can be agreed between the parties (via their solicitors) and the arbitrator.
The process can be like Court if that is what the parties want.
The parties can give their evidence by affidavit.
The parties can agree to cross examination if they wish (most don’t).
The process is quicker than the Court process.
The process is less costly than the Court process, although the arbitrator will charge a fee, and
The parties will get a quick decision because the arbitrator is not paid until the award is delivered.
If you are seeking a process that provides a guaranteed outcome, then arbitration may be the best option for you. Arbitration does involve a lot of work. Solicitors and their clients need to thoroughly prepare for arbitration, just as they would for a trial in Court.
Are you close to agreement, but you have reached a deadlock? Try Med-Arb
Med-Arb is mediation followed by Arbitration, using the same dispute resolution practitioner as mediator and arbitrator.
Want to know more?
If think that ADR may assist, please phone us on (07) 5458 9000 for a free chat with one of our solicitors.
Read the full article here.
