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Family Law Library

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Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


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What is arbitration?

Arbitration is a form of dispute resolution where parties (or their lawyers) will present arguments to a chosen arbitrator who will make a determination to resolve the dispute. This type of dispute resolution is available to parties who are disputing financial matters, such as spousal support, property settlement, and financial agreements. Arbitration is not, however, an appropriate venue to settle disputes related to children.

Arbitration is almost like a hybrid of court proceedings and mediation. It is similar to mediation in that it is an out of court settlement method, however it differs from mediation in that in mediation the parties work to reach their own agreement. There are some advantages to choosing arbitration as a means to settle a financial dispute. For instance, this process allows the parties to retain much more control and it is more flexible than going to court. You get to choose the arbitrator, who is the ultimate decision maker, and it is also quicker and less expensive than the court process.

Arbitration can be especially appealing to those who have disputes about both children and financial matters. For these parties, they can address parenting issues through mandatory family dispute resolution and subsequently arbitrate their financial dispute without delay.

Should I meet with an lawyer before agreeing to mediation, arbitration, or other dispute resolution?

Yes. We encourage you to always seek legal advice prior to agreeing to dispute resolution. While dispute resolution is all about reaching an out-of-court agreement, you will still want someone to explain to you the dispute resolution process as well as what to expect if you have to litigate your issues.

An lawyer can explain your rights, review the facts of you case, and help you determine if dispute resolution is appropriate for your case. While dispute resolution is mandatory in some cases, in others it may not be the best course of action and an lawyer can advise you on such.

Finally, you will want to have an lawyer present at your dispute resolution. Having representation at a mediation or arbitration helps tremendously as your lawyer can advocate for you and advise you on the best way to proceed and whether you should agree to a proposed settlement.

How to Avoid an Unsuccessful Mediation

Generally speaking, reaching a settlement is best the way to address problems associated with the breakdown of a marriage. When parties can agree on the terms of their separation through mediation or other means, the resulting agreement usually suits their needs better than if a judicial order.

When you have to litigate issues such as property division and custody in court, you rely on the judge to determine a fair solution, which can sometimes leave one or both parties feeling as though they lost, so to speak.

While settlement is highly encouraged, there are certain obstacles that can make reaching a fair settlement impossible. Awareness and acknowledgement of these hurdles is the first step in preventing them from ruining your attempts at negotiating a fair settlement.

1 – Consider Emotional Barriers

It is far too easy to let our emotions consume us when it comes to matters affecting the heart. The breakdown of a relationship can set you on an emotional roller coaster of highs and lows. You may experience feelings of guilt, hatred, anger, heartbreak, or any number of emotions. Emotions are the most common thing that frustrate settlement attempts. Here are a few tips you can use to make sure your emotional crisis won’t ruin your chance at reaching an amicable settlement.

Don’t rush into mediation. Often when parties realize that the marriage has failed they become eager to finalize the separation, move on, and start anew. Some people push their lawyers to get things done quickly because they are anxious to move on. This is not always the best course of action. Even if you think you are acting clearly and rationally, chances are your wounds are still fresh and your emotions are clouding your vision. If you show up at a mediation feeling angry, resentful, guilty, rejected, desolate, mistrustful, sad, nostalgic or any other number of emotions it can completely ruin your chances of reaching a settlement. Be sure to give your heart some time to heal before attempting mediation.

Seeking professional help in the way of counselling or therapy can also help. You may think that you don’t need any help, and that counselling isn’t for you. Perhaps you think counselling is only for couples trying to reconcile. There are many reasons you might rationalize not seeking help during this time. The bottom line is that counselling can help. These professionals can help you deal with your emotions, discuss how to help your children, and even help you make budgetary decisions as a newly single person. Often, people who do seek professional help obtain better legal results as well as emotional results.

2 – Recognise and Avoid “Stuck Spots”

Another common reason why people are unable to reach a settlement is because parties sometimes reach an impasse on a specific issue and are unable or unwilling to compromise. Often these stuck spots are not actually irreconcilable differences, but for whatever reason the parties cannot seem to move past them. The best way to avoid ruining a settlement this way is to be willing to compromise.

Approach your settlement with an open mind. Enter mediation prepared to make concessions and compromise. If you reach a stuck spot and your negotiations fail because you can’t agree on something relatively petty (like who gets the master bedroom furniture), then you are going to be forced to head to litigation. Litigation will take longer, cost more money, and you will be relying on a judge to make decisions for you.

Also as you approach settlement negotiations remember that you will not win every battle. You may think you should get the marital home, primary custody, child support, alimony, possession of the vehicles, and all the money in savings, but you simply will not win every battle. Be prepared to stand your ground on the important stuff but understand that you will not get everything you ask for.

3 – Identify any Imbalance of Power

Typically marriages do not end amicably, and more often than not, the reason for the breakdown of the marriage is complicated. Maybe someone cheated, or lied about assets, or you can’t agree on child rearing issues. The breakdown of a marriage can be contentious, and depending on the circumstances it can result in an imbalance of power.

If the imbalance of power is so great in your case, it is not an appropriate time to attempt mediation. When the imbalance of power is irreconcilable, the mediator may find it impossible to reason with the parties. This imbalance may disappear with the passage of time, but if not, the case may not be suited for mediation.

4 –Avoid Playing War Games

You clean out the bank account. Your spouse then takes your name off of the joint credit card. You respond by letting the power bill lapse. She then responds by not letting you see the children. It may start off innocent enough but war games frequently rear their ugly head when it comes to divorce proceedings. Otherwise rational people get so consumed by their emotions that they act in a totally irrational manner.

There is only one way to work around this obstacle. Call a truce. These malicious games accomplish nothing. If one or both parties enter mediation furious over these games, nothing will be accomplished.

Before you attempt settlement negotiations, familiarize yourself with common impediments and work hard to remove them from your situation. Often this is easier said than done, but ultimately you will be much happier with a fairly negotiated settlement that you both agree to than having a judge decide how to settle your issues.

Collaborative Family Law

Some divorces are ugly – both parties will “lawyer up” quickly, choosing lawyers known for achieving certain results. These divorces usually involve allegations of adultery, contentious custody battles, or high dollar property settlements. When there is a lot at stake, the claws come out.

Other divorces are more amicable. Sometimes couples simply fall out of love, recognize that it is time to move on, and can reach an agreement fairly easily regarding their divorce related issues.

Most divorces fall somewhere in between these two extremes.

For couples that lean more towards the second scenario, collaborative divorce might be something to consider.

What is Collaborative Divorce?

Collaborative law utilizes a non-adversarial approach to settling differences and resolving disputes. The parties, lawyers, and other professionals involved in the process all enter into a formal agreement to focus on reaching a settlement without resorting to litigation.

In collaborative law, if successful, parties can expect to never see the inside of a courtroom. All negotiations and exchange of information will take place in meetings where both parties, as well as their lawyers, are in attendance.

Different from Traditional Divorce

One core value of collaborative law is to allow the parties to feel as though they are a part of the process. For many who chose traditional lawyer-based negotiations, they feel disenfranchised, like the lawyers are in control and they are simply along for the ride. Collaborative law aims to help the parties feel as though they are actually involved in working through the problems and reaching a solution.

Another core value of collaborative law is to achieve a solution that allows the parties to have a productive post-separation relationship. Simply by opting for the collaborative law process over traditional divorce proceedings, the nature of the negotiations changes dramatically. Parties tend to be more amicable, and they agree to avoid “game playing” like withholding child support or spousal support.

What is in a collaborative contract?

If you opt to resolve your issues through collaborative law, you will need to sign a collaborative contract. Most importantly, the contract will rule out immediate litigation through the “disqualification clause.” This clause expressly prohibits a party from commencing litigation during the collaborative process, and it also prohibits a party from threatening such.

Another aspect of the disqualification clause is that it bans the lawyers involved in the collaborative process from being involved in any subsequent litigation should the collaborative process fail. If the parties are unable to reach a settlement and ultimately do litigate their issues, they must retain new counsel.

Beyond the disqualification clause, the contract will set forth other rules and consequences. For instance the contract will require both parties to give full and honest disclosure of all relevant information and will outline what is to take place in the event of a breach. A contract also may request parties act in good faith, focus on the well-being of themselves and their children, and also require the parties to contribute to developing mutually beneficial options.

The Process: 4-Way Meetings

In collaborative law, parties negotiate and discuss settlement options in a neutral setting through a series of face-to-face discussions. This is a stark contrast from traditional lawyer-based negotiations where the parties have limited contact and rarely see each other. In a traditional mediation, the parties might never even lay eyes on each other throughout the whole mediation. In collaborative law, however, they parties will be face-to-face.

These meetings are called “4-way” meetings because both parties are present, as well as their respective lawyers. These meetings are characterized by direct communication amongst the lawyers and the parties – this is not a situation where a lawyer will speak on behalf of the client. All four people are actively engaged in open dialogue about the issues to be resolved.

While the lawyers will undoubtedly meet with the parties in advance and prepare for the meeting, the majority of the work necessary to resolve the dispute takes place at the meeting and requires direct input by the parties.

Other professionals may also be involved in the 4-way meeting. It is not uncommon for a psychologist, child specialist, financial expert or other professional to be involved. These meetings are tailored to reflect the needs of the parties and will involve professionals whose opinion can have an impact on achieving the best possible solution.

The Approach: Interest-Based Negotiations

Even the way the parties negotiate at a 4-way meeting is different than in traditional lawyer-based negotiations. Collaborative law places an emphasis on something called “interest-based negotiations.” This refers to the concept that the parties are to focus on their needs and interests rather than their positions and grievances.

Rather than approach the 4-way meeting with a mindset to discuss what has happened in the past, the focus is more on the future.  This helps the parties to look past incidental or ancillary problems and it encourages realistic expectations.

Interest-based negotiations also encourage creative solutions. If parties were to litigate custody issues a judge would come up with a very black and white custody schedule. If you settle custody issues through collaborative law, the possibilities are endless. You can work out a schedule that is atypical and meets your needs better.

Is Collaborative Law For Me?

If you are the type of person who says “we are only going to hire lawyers if we can’t work it out and it gets really ugly” then the collaborative route is probably for you. If you tend to have a more amicable relationship with your former spouse, collaborative law could work for you.

It’s hard to say right away whether it will work for any given couple, but if you aren’t dealing with a particularly ugly divorce characterized by emotional issues, contentious custody battles, or major disagreements over divorce related issues then you could be a prime candidate for collaborative law.

What is your lawyer’s role during divorce mediation?

When you attend mediation, the mediator is the person who runs the show, so to speak. The mediator works with both sides in helping the parties come to an agreement. But just because the mediator is driving the settlement negotiations, your lawyer still has an important role.

Prepare

First, your lawyer will need to prepare for mediation. This entails meeting with you to discuss the process, preparing a file with all important and necessary documents to bring to the mediation, and exchanging documents with the opposing party. Even though the lawyer is not the one who will lead the negotiations, the lawyer still must come to the mediation prepared to advocate on your behalf.

Advocate

Your lawyer will need to be your advocate at mediation. Your lawyer will help you explain your case to the mediator, and will make sure that your wishes are being clearly expressed to the mediator. If you forget to tell the mediator a pertinent fact or detail, your lawyer will be sure to make sure that said detail is mentioned.

Advise

Your lawyer will be your advisor at mediation. While a mediator can tell you how the law works, and can suggest a certain path, you will still want your lawyer present to advise you on whether a proposed agreement is in your best interest. If it seems like the parties are too far apart with regard to reaching an agreement, your lawyer may advise that the mediation cease.

So while the parties and the mediator are front and center, so to speak, at mediation, your lawyer also has a significant role as well.

Could family counseling work for me?

If you think there is a chance of reconciliation, you may be eager to attempt family counselling to work out your problems with your former spouse. But what if the damage is already done, and you are not interested in reconciliation? Should you still consider some type of family counselling?

Often, couples with no intention of getting back together, still find family counselling to be beneficial. Counselling may help you cope with the changes brought on by a separation or divorce, and can also be help you to understand and address any issues your children may be experiencing because of the breakup. Counselling helps you explore hurt feelings, unresolved issues in your relationship, new living situations, and financial adjustments. So, even if you have no intention of reconciliation, counselling still may be helpful as you experience a breakup.

Alternatively, you may in fact be hoping for reconciliation. Or, you may have an otherwise steady relationship, but you and your partner have been fighting more than normal. If find yourself concerned because of recent and atypical fighting that is occurring in your relationship, or other problems have arisen, counselling may be just what you and your partner need to get through a rough patch in your relationship. Counselling can help you get to the root of the problems in your relationship, and help you cope with new challenges as your life together evolves.

If you don’t think that counselling is necessary for you, it still may be something your child could really benefit from. Even if your child seems resilient and undaunted by your divorce or separation, she could be experiencing emotional issues that can manifest later. Addressing these feelings timely can save your child much emotional heartache and result in healthier relationships between your child and yourself as well as your former partner.

If you are interested in counselling, you may find a private practitioner who is qualified to serve as a counsellor for you, or you may take advantage of government sanctioned community based organizations as well. Don’t let money be an excuse to not take advantage of counselling; there are government resources available that make adjustments to the costs of counselling if you are on a low income or experiencing financial struggles.

If you have further questions about family counselling, you can always contact the Family Relationship Advice Line on 1800 050 321, visit www.familyrelationships.gov.au, or seek advice from one of the knowledgeable lawyers at Matthews Family Law.

I tried dispute resolution, and it didn’t work.

There are advantages to going through dispute resolution. Even though it is mandatory you should approach your session with an open mind and a positive attitude. While the goal is for you and your former partner to reach an agreement, you can still experience some benefits even if you fall short of reaching an agreement.

Simply going through this process often helps former partners communicate better, understand the other’s position better, and can sometimes turn a tumultuous situation into a more amicable one. So, even if you fail to reach an agreement, the mandatory dispute resolution may still be beneficial.

After your attempt at family dispute resolution you will be issued a certificate. Even if you fail to reach an agreement, you will still need to provide the court with the certificate, which memorializes your attempt at resolution. Once the court has received the necessary certificate you may litigate your child related issues in court and the judge will ultimately made the necessary decisions.

What if you feel that attending dispute resolution might be unsafe?

Unfortunately, domestic disputes can lead to feelings of anger and resentment, which can manifest itself through violence. Sometimes violence is even the reason couples are seeking a divorce. If you and your former spouse have a particularly tumultuous relationship you may feel as though sitting in the same room and being forced to talking about your issues could escalate into violence.

So what do you do if dispute resolution is a mandatory step before you can apply to the court for child related orders?

The requirement to undertake dispute resolution is waived in situations where there has been a history of, or there exists a risk of, family violence or child abuse. The court has no expectation that you will attend dispute resolution if your safety is at issue in any way.

If your situation is not extreme enough to call for a waiver of this requirement, the logistics of your dispute resolution session may be altered to accommodate your apprehension. For instance, it may be possible to conduct the session with the parties in different rooms rather than siting face to face.

Your safety prior to, during, and after dispute resolution is of paramount importance. If you have any concerns about violence you should notify your family dispute practitioner or a staff member at the dispute resolution center immediately. You should also be vocal about this concern with your lawyer if you have one. Do not be afraid to bring this up – your safety is nothing to be shy about.

Family Law Alternatives to Dispute Resolution

The family courts in Australia recognize the limits of an adversarial system, in which sides come to a judge, armed with aggressive lawyers, to let someone else determine their future. Rather than encouraging people – many of whom were married to each other for years, raised children together and made difficult life-changing decisions together – to discuss the issues with each other when there is a problem, it encourages them to do battle against one another, make the other person suffer, and take as much as they can. There is no balance between the carrot and the stick – there is only a stick, no carrot.

Family law in Australia does, however, offer alternatives to the traditional court approach. Many couples, after first trying to resolve their dispute on their own, now turn to mediation. Mediation generally takes place between the husband and wife or de facto partners, sometimes with their lawyers at their sides (if both sides agree) and is led by a trained, neutral mediator. Mediators may be lawyers themselves, but also come from backgrounds in social work and family therapy. The mediator helps the sides define their interests and what is important to them, manages the discussion between the sides and helps them come to a resolution.

The mediator’s responsibility is to assist the sides in resolving the problem in the best way possible for everyone. This means looking at the whole picture – the children, the ability of the sides to continue working together in the best interests of the children, ensuring that everyone can stand on their feet economically – and not just at the individual desires or demands of one particular side. It’s not an easy task for the mediator and it’s even more difficult to bring the sides to this larger understanding. The mediator does not serve as a judge, making a final ruling. The final agreement must come voluntarily from the two parties.

In certain family disputes in Australia, couples, both married and de facto, are required to attend Family Dispute Mediation. Trained practitioners in the field of family disputes, with professional backgrounds in the fields of law, social work and psychology work with a separating couple to help them through the process. These practitioners will advise the couple on best practices for the good of the children. Family Dispute Mediation is required before parents apply for parenting orders from an Australian court. Parents attending this type of mediation receive a certificate which must be submitted to the court before parenting orders will be given. There are exceptions to this requirement, however, such as urgency, domestic abuse or mental illness.

Vanessa Mathews is a family law specialist and mediator and an accredited family dispute resolution practitioner. Mathews Family law also provides the full range of dispute resolution options, including lawyer-led negotiations and arbitration.