Being involved in protracted family law court proceedings can be exhausting, stressful and costly. Our focus is to guide our clients through this difficult time, using alternative dispute resolution methods to resolve their disputes wherever possible. There are various ways to resolve your family law matter without going to court.
Mediation involves a trained, neutral mediator assisting you and your former partner towards a negotiated agreement. Both parties are encouraged to participate in the decision-making and propose workable solutions that best meet the needs of the family. The negotiations are conducted voluntarily and confidentially. This means that either party is free to walk away from the process at any time. Mediation can be much more flexible than going to court and can lead to a faster resolution of your family law matter. Any settlement reached can be documented in a legally binding agreement. Where appropriate, this can be used as the basis for an order for the court’s approval.
Frank and James are trained mediators and members of the Family Mediation Association. They see their roles as mediator to facilitate the discussion and, if appropriate, provide general legal information to enable the discussion to move forward. Their role as a mediator is, in every case, impartial.
Should you choose to use our mediation service, it will remain open to you to retain your own solicitor to advise you as to the appropriateness of any agreement reached at mediation and we can explain this to you if you wish.
Early Neutral Evaluation (ENE)
ENE involves the appointment by parties to a dispute of an independent and impartial evaluator to provide an opinion on the respective merits of a case and recommendations after each party makes representations at a ‘hearing’.
The parties can then use the evaluation as a basis for negotiating a settlement. The process is confidential, non-binding and without prejudice – unless exceptional circumstances apply, representations made by the parties during the evaluation process cannot be used in subsequent proceedings.
Private Financial Dispute Resolution (PFDR)
PFDR can be used to resolve your financial affairs as an alternative to court proceedings, or if proceedings are already underway, you may opt to attend PFDR. The process involves the appointment by the parties of a financial dispute specialist, who may be a solicitor, barrister, or retired judge.
During the ‘hearing’ the parties’ respective legal teams make submissions and the judge provides an assessment of an appropriate outcome or a range of likely outcomes. The parties can then move forward to settlement negotiations on a ‘without prejudice’ basis.
As with most processes there are pros and cons. Some advantages of PFDR include:
- As the process involves the private appointment of a judge, the parties are not at the mercy of long waiting times and interruptions that would otherwise apply in court proceedings.
- During the process, the judge is focused on the case at hand and generally commits a full day to the matter.
- The parties can nominate a judge with specific expertise relevant to their issues.
- The process is usually conducted in the judge’s chambers or conference rooms, providing a more relaxed atmosphere than formal court proceedings.
Probably the greatest disadvantage of PFDR is that the parties will need to pay for the process. However, the potential for the dispute to be resolved quicker and without the cost of preparing for a final court hearing, can offset this expense. Research shows that the success rate is in the region of 90%.
In both PFDR and ENE processes, the parties agree to make frank and clear disclosure of the relevant facts to each other and to the judge/evaluator conducting the process. They must conduct themselves with the same respect and repose as otherwise expected in matters before the court.
The parties must act in good faith with a genuine intent to reach agreement on the matters in dispute. They must cooperate with, and provide the information necessary, to assist the evaluator in carrying out his or her duties. The process should be used to focus on the issues in dispute and not merely as an opportunity to air grievances.
Family arbitration is an alternative method of resolving a financial dispute which can be faster and less expensive than going to court. The parties to the dispute agree on the selection and appointment of an arbitrator and the matters that the arbitrator will decide. This provides the parties with an element of flexibility and control over their matter that may not otherwise be available through the court system. The arbitrator’s decision (award) is final (unless very limited extenuating circumstances apply) and the parties agree to this before the arbitration commences. Arbitration awards are then approved by the court and have the same binding effect as court orders.
When dealing with your family law matter, we will:
- encourage clients to put the best interests of the children first
- conduct matters in a constructive and non-confrontational way
- avoid use of inflammatory language both written and spoken
- retain professional objectivity and respect for everyone involved
- consider the long-term consequences of actions and communications as well as the short-term implications
- emphasise to clients the importance of being open and honest in all dealings
- make clients aware of the benefits of behaving in a civilised way
- keep financial and children issues separate
- ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional
- inform clients of the options, for example, counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings
- abide by the Resolution Guides to Good Practice
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