You may have heard that you are required to participate in dispute resolution prior to commencing proceedings in the Federal Circuit and Family Court of Australia. This is correct, however parties should not attend dispute resolution with the intention that it is a requirement to commence proceedings. Parties should attend dispute resolution and make a genuine attempt to resolve their matter to avoid having to commence proceedings and save on legal costs.
When you think about dispute resolution you probably immediately think mediation’, but that isn’t the only type of dispute resolution available to parties in family law matters.
The other types of dispute resolution available to parties are:
⁃ Mediation/Family Dispute Resolution
⁃ Conciliation conference
⁃ Child Inclusive Mediation
⁃ Arbitration
Mediation is a dispute resolution process which is facilitated by an independent third party to help them reach an agreement. Parties can attend mediation to discuss parenting or property matters, or both.
Family Dispute Resolution is facilitated by an independent Family Dispute Resolution Practitioner and is a requirement prior to commencing parenting proceedings. Family Dispute Resolution can be utilised to discuss both parenting and property matters, much like mediation.
Child Inclusive Mediation is conducted by trained child specialists to assist parents in reaching a parenting arrangement that is child focused and takes the child’s wishes into account. A Child Specialist will speak to the child prior to the mediation to obtain their views on potential arrangements, which will be discussed with the parents at mediation.
Conciliation Conferences are typically facilitated by a Judicial Registrar after proceedings have been commenced. The Judicial Registrar will review material filed by the parties and assist the parties in exploring options to settle the matter without the need for continuing court proceedings. Judicial Registrars will not determine an outcome on behalf of the parties.
In Mediations, Family Dispute Resolutions, Child Inclusive Mediation and Conciliation Conferences, the role of the facilitator is to assist the parties in reaching an agreement. The facilitator cannot force the parties to reach an agreement nor can the facilitator make an agreement for the parties. The conversations and offers exchanged through mediation are confidential and are unable to be used by the parties, should the matter not settle.
In addition to the traditional dispute resolution options, Arbitration is also available to parties. Arbitration is a process where the parties present arguments and evidence to an independent arbitrator to make a determination to resolve the dispute, similar to a trial. Arbitration is available for property matters only and is privately funded by the parties. The parties jointly agree on the appointment of the Arbitrator, who is often a senior legal practitioner that is specifically trained in family law arbitration.
It is important to also remember that parties also have the option to exchange written offers of settlement at any stage through negotiations and proceedings in an attempt to settle their matter.
Unsure what type of dispute resolution would be best for your family law dispute? Contact our team of family lawyers today to discuss.
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