Most of the family law cases do not go to Court

Most of the family law matters do not end up going to Court and indeed some cases which go to Court should not.Family lawyers should always discuss with their clients which method of dispute resolution is best for them.The Court system itself encourages people to negotiate and even when contested Court proceedings are commenced, 95% of those cases settle by agreement before final hearing.

The types of dispute resolution include:

Some lawyers have no objection in principle to their clients discussing and negotiating matters directly with the other side. However it should be remembered:

• (a) it is important to have legal advice first so that they have a reasonable idea of what should be agreed to and what shouldn't;
• (b) if at the kitchen table they sign an informal agreement relating to children, that is a "Parenting Plan" and it is possible that it will be enforced by the Courts - so they need to be careful about signing anything;
• (c) if they have a de facto property dispute and they come to a clear agreement with the other party about settling their matter they may find that it is legally binding - so they need to be careful about committing themselves without their lawyer's precise advice; and
• (d) in all other areas including property settlements arising from marriage separations, they cannot have a legally binding settlement without relevant paperwork being prepared by their lawyer. Hence they should take such an agreement to their lawyer to implement.

Many cases are settled through a solicitor doing the negotiation on their client’s behalf by telephone, mail and in roundtable conferences involving them and the other side as well. A solicitor gives a client advice about what is a fair settlement but, often more importantly, helps to take the pressure and strain of negotiations off a client.

Where there is a significant power imbalance between the parties a solicitor is often vital to redress the power balance. A solicitor often negotiates on a client’s behalf even if the other party does not have a solicitor representing them.

This is a negotiation process where the two lawyers and clients sign a contract promising not to take the matter to Court and to focus on interest based negotiations, not positional bargaining.

Government funding provides for 3 hours of free “mediation” with a family dispute resolution practitioner in relation to children’s matters. This does not cover financial matters.

Mediation 

Mediation involves your client and the other party and sometimes the two lawyers attending a mediator who tries to resolve matters by agreement. This can take place before or after Court proceedings are commenced and avoid any need to go to Final Hearing in Court.

Arbitration is a private process. Both parties must have lawyers and by agreement an Arbitrator is appointed and paid to be the Judge of the case in a financial case. It does not apply to children’s matters. This can be a very helpful process because it avoids the often long waiting lists in the Court queue for matters awaiting Final Hearing.

Generally Court is necessary where something very urgent has arisen and the other party is uncooperative or, alternatively, negotiation (through any of the above methods) has failed or is simply taking so long that a client can’t wait any longer.

The Court system itself encourages people to negotiate and even when contested Court proceedings are commenced, 95% of those cases settle by agreement before final hearing.