Mediation & Dispute Resolution

Yes, generally speaking. If you are involved in a legal dispute, using an alternative dispute resolution process is usually a viable option to resolve your case. Mediation is one such process that can provide a cost-effective solution to a legal problem.

Mediation involves a neutral person known as a mediator, who encourages parties involved in a dispute to identify issues, develop options, and consider alternatives to resolve it. Mediators do not determine the outcome of the dispute or provide legal advice, their primary role being to assist the parties to reach an agreement.

Mediation can be used for various legal disputes including:

• civil and commercial disputes
• debt recovery and contractual disputes
• family provision claims
• family law matters

Mediation is generally quicker and more cost effective than going to court, is less formal and allows the parties to explore more creative options to resolve their matter. Mediation can also provide an opportunity to preserve the parties’ relationship, which is particularly beneficial for children’s matters where the parents share ongoing involvement in decisions concerning their children.

Mediation can take place without both parties being in the same room – often parties are in separate rooms and do not see each other at all. You can attend with or without a lawyer.

Bernadette Smyth is a lawyer and Nationally Accredited Mediator and Arbitrator and is authorised to conduct mediation and arbitration in family law matters as well as other areas of law.

Unless extenuating circumstances exist, family law requires parties to make a genuine effort to resolve their disputes before an application can be made to the court.

A family dispute resolution conference is a form of mediation which is used to encourage parties to negotiate a resolution outside of the courtroom. The conference is conducted by an accredited family dispute practitioner.

Family members or support persons are permitted to attend the conference. If you would like your lawyer involved, you should discuss this with the practitioner conducting the mediation beforehand.

Children do not attend however in some cases a family counsellor or child psychologist will communicate with a child and if required, prepare a report.

The role of the practitioner is to assist the parties to cooperate in a positive manner and to work through the real issues, leaving emotional matters aside.

The parties attending should make genuine efforts to resolve the issues in dispute and explore options for workable parenting arrangements that will be in the best interests of the child or children. The practitioner should ensure that each party understands the process and the terms of any agreement reached.

Unless the practitioner has a legal obligation to disclose certain information, communications exchanged during the mediation are generally confidential and cannot be used as evidence if the matter ultimately proceeds to court.

If an agreement is reached, a parenting plan can be developed, or consent orders filed with the court.

If both parties attend family dispute resolution and the outcome is unsuccessful, the practitioner will issue a certificate noting each parties’ attendance and verifying that genuine attempts were made to resolve the dispute.

Alternatively, the certificate may indicate that one party failed to attend, one or both parties failed to make genuine attempts to resolve the dispute (either initially or part way through the mediation), or that family dispute resolution was not appropriate in the circumstances.

Non-attendance at family dispute resolution (unless an exception applies) may result in a delayed court hearing or adverse costs orders.

Arbitration involves each party to a dispute presenting their argument with evidence to an arbitrator. Unlike mediation where the parties are encouraged to reach their own agreement, an arbitrator will make a decision for the parties after hearing the evidence.

Arbitration can be ordered by consent in matters in which there are current proceedings before the court, or the parties may agree to have a private arbitration. Arbitration in family law cases is limited to financial matters such as property settlement, spousal maintenance, and financial agreements. Children’s matters such as who children live with and who they spend time with are not dealt with by arbitration.

An application will need to contain submissions setting out the financial position of the parties, the relationship history in terms of caring for children, and the work capacity of the applicant and respondent. It should take into consideration the immediate and long-term earning capacity of the applicant and respondent.

The application should be supported by evidence demonstrating the needs of the applicant and his or her inability to financially meet those needs. This will include financial statements and, where relevant, medical reports setting out any health concerns and how these impact on the applicant’s earning capacity. Job search diaries and details of any training necessary to re-enter the workforce may also be relevant.

Applications for spousal maintenance must be carefully prepared so that the argument for maintenance is clearly documented and supported with evidence.

Our lawyers can explain the process of applying for spousal maintenance and will provide an assessment of the likely success of your matter before preparing the necessary application and supporting documents.