To mediate or not to mediate?

Alternative Dispute Resolution in Family Law

When it comes to alternative dispute resolution (“ADR”), there is never a ‘one size fits all.’ Every dispute is different. Not all disputes are suited to ADR, and there may be some cases – for example in the instance of domestic violence or unacceptable risk to a child – where litigation is the only way to fairly and properly adjudicate the matter between parties.

However, in the majority of family law cases, ADR can be not only an incorporated process; but in fact a central vehicle for the resolution of the dispute between parties.

ADR such as negotiation, mediation and arbitration often achieve much more timely, cost effective outcomes for parties than traditional litigation. This is so for many reasons, but primarily because in engaging with ADR, the parties are the arbiters of the method and manner of their dispute resolution.

Being bogged down in the court system can unfortunately mean many months if not years before a dispute is resolved. In contrast, parties can engage in ADR at any point in their dispute journey. It may be that parties decide to mediate when the dispute first arises, to help them resolve issues early; or to negotiate or arbitrate while the matter is already in court, to save time and litigation expense, once some of the legal issues and materials have been ventilated isn’t earlier litigation stages.

Mediation has the key benefits of:

  1. Empowerment;
  2. Recognition; and
  3. Self-determination.

Parties can feel empowered by taking responsibility for their matter. Mediation also enables parties to feel heard and recognised. It allows parties to recognise the rights of others and to seek recognition. Finally, self-determination can enable parties to reach more durable dispute resolution outcomes, and have genuine “buy in” into any solution reach.

In terms of the “who” and “how” of ADR and mediation – the possibilities are as broad as your imagination.

Two of the most common ADR methods which we see are lawyer-assisted negotiation, and mediation.

You can engage in lawyer assisted negotiation – where parties attend a negotiation while legally represented. The benefit of this method is that parties are assisted in narrowing down the issues between them and in understanding their respective legal positions. Having a lawyer present to negotiate on your behalf is also important in circumstances of power imbalance.

You can choose to engage in mediation – either with or without a lawyer. It is open to parties to approach a mediator who will mediate or arbitrate the dispute between the parties without lawyers. Such an approach is best suited to simple matters where parties are generally in agreement on the parameters of their dispute. More commonly, parties attend mediation with their lawyers. Their lawyers are able to distill the relevant legal and other issues, and to assist the mediator in a more structured approach to the resolution of the dispute.

For more information speak to one of our experienced dispute resolution practitioners. We are able to assist you with negotiations, mediation and anything in between.  Contact:

Carlos Turini

e:           | p: 02 6206 1300

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