Alternate Dispute Resolution – Maximising Your Prospects

August 27, 2019

The landscape of family law has somewhat changed in terms of the emphasis alternative dispute resolution. At The Norton Law Group we specialise in various forms of alternative dispute resolution including mediation and settlement conferences. The success rate of mediation is very much dependent upon the preparation that goes into preparing for the day.

There is some confusion when it comes to mediation. Mediation can take various forms including:

family dispute resolution and mediation, referred to as FDR;
mediations in the pre-action phase, and that is before legal proceedings are commenced; and
Court imposed mediations/conciliation conferences.

They all designed to help settle a dispute but there are some important differences.

What is FDR mediation and is it compulsory?

FDR is conducted by family dispute resolution practitioners who are trained and registered, but they don’t have to be a legal practitioner. We often recommend and use private FDR mediators some who are legal practitioners and many who are not. An organisation which provides FDR mediation at low cost is Relationships Australia or Catholic Care.

FDR is only compulsory for parenting disputes, though there are a number of reasons and exceptions when the requirement for FDR mediation can be waived.

FDR is generally undertaken without lawyers present and it is encouraged to engage in FDR very early following separation. If FDR mediation results in a settlement of parenting disputes we can then draw up orders reflective of the agreement reached. If FDR mediation does not result in a settlement, the mediator will provide a certificate pursuant to section 60 I of the Act which enables parties to commence proceedings.

Of course, by request, FDR can also be undertaken with lawyers present. It matters of property or finances are to be included in FDR mediation we would recommend lawyers be present or at a minimum be involved in the preparation for the mediation.

Is mediation otherwise compulsory?

Mediation is not compulsory for property or financial matters.

Very often mediation can be a very useful process in resolving disputes in the pre-action phase, but not all matters are suitable to pre-action mediation. Some matters have a much higher success rate at the post action mediations.

How successful is mediation?

In terms of the success rates of FDR and mediation conferences, much depends on the issues in dispute, the choice and quality of mediator and the quality of the legal representatives. We have found that success rate mediation can be as high as 97% if mediations approached the right way.

It is very important that you select the correct mediator, so that you get the best chance of reaching a resolution of case.

So, if you are thinking about FDR or mediation, it is very important that you get expert family law advice from one of our specialists family lawyers.

Can I settle the matter without mediation?

Very often we engage in roundtable settlement conferences where the parties and their legal representatives can often collaborate together in a reasonably nonconfrontational manner with a view to resolving issues in dispute without the need of a mediator. Again, no two matters are alike and which alternative dispute resolution method is used to resolve your matter must be specific to your matter.

What if I settle?

If your matter does settle, then we recommend all settlements be documented by way of formal orders of the Family Court or by way of Binding Financial Agreements.