Dispute Resolution and Mediation- what is it and why do I need to do it?
Summary:
It is mandatory to participate in and make a genuine effort to try and settle your dispute at Family Dispute Resolution before making an application to the Court in almost all parenting matters and is a cost-effective way to deal with disputes over the division of your assets after separation
- Dispute Resolution processes include Mediation and Arbitration
- Once a matter is in Court, the Court can refer the parties back to Dispute Resolution processes as many times as is appropriate. The Court can refer the parties to Dispute Resolution with either a Judicial Registrar or parties can choose to attend Dispute Resolution with a private mediator.
- The aim of the Dispute Resolution process is to solve your dispute outside of the Court system, saving you money and time.
If you are currently going through a separation, and you are trying to find information on what happens next, you have probably come across the phrase “dispute resolution” or “family dispute resolution”. But what does this mean? And why is it so connected with separation and divorce?
The background
For couples that are separating, the Family Law Act 1975 (Cth) is the law that sets out how a separation happens, who gets what, and what is to happen with any children of the relationship.
Back in 1975 when the Family Law Act became law, the Family Court of Australia was established to deal exclusively with disputes that arose from separation and divorce. If a couple going through separation and divorce needed help to resolve their disputes, they went to this court.
Over the years, that court got busier and busier. Other courts were given the authority to deal with Family Law matters. But the demand to access the courts to resolve disputes became greater and greater. And so, the need for alternative ways to resolve disputes arose.
The meaning
“Dispute resolution” is a term that refers to any formal way to resolve a dispute outside of a court. In Family Law, the main forms of dispute resolution are mediation and arbitration.
Mediation is a process where the people with the dispute come to a person, called a mediator, and ask for a meeting. In the meeting, the mediator guides the people through the negotiation process, helping them to come up with a resolution.
Arbitration is a process where a person is appointed makes a binding decision about the dispute in the same way a decision made by a Judge or Judicial Registrar of the Court is binding. Arbitrators don’t make “orders” they make “awards”.
Parties must consent to participate in Arbitration. The Court can’t refer the parties to Arbitration without their consent. Arbitrators can only make decisions about disputes that relate to property. Arbitrators cannot determine disputes relating to children’s matters.
The intention
The purpose of Dispute Resolution is to keep people out of the court system. Court processes are very slow and very expensive, and it’s not uncommon for disputes in the Family Courts to take many years and cost parties hundreds of thousands of dollars. The system has improved since the merger of the Federal Circuit Court and Family Court of Australia, and the introduction of the Central Practice Direction.
Dispute Resolution processes are designed to keep costs down for the people seeking a resolution and provide them with access to a much faster process than what they would have with the court.
In one recent court case, a Judge has said that the point of Dispute Resolutions process is so that parties can access “resolution of disputes at a cost that is proportionate to the cost and complexity of the issues in dispute”.
How it applies to you
In most cases, you will need to try a Dispute Resolution process before you make any applications to the Court. There are exceptions to this rule, and your lawyer will help you with this.
Most people try Mediation as their first step towards a resolution. You can engage in Mediation in a few ways. The most common ways are:
- You see your lawyer, who engages with a Mediator and arranges for mediation to take place with your former partner and their legal team.
- You approach a Mediation service, such as The Separation Place, or Relationships Australia, and ask them for a Mediation.
Our Team
Kelly and her team of lawyers and mediators and FDRP’s can help you with any questions that you have.
Call today and schedule a meeting with us via Phone or Zoom 1300 444 LAW .
