Alternative Dispute Resolution is a way of resolving family law disputes without using litigation.
It is used before court proceedings begin as an alternative way of resolving a dispute.
A lawyer will use this method as an additional way of dealing with a family law issue, and along with an ADR, professional counselling, conciliation and mediation are the methods used to help resolve disputes.
The Family Law Act demands that parents do attend a family dispute resolution and make a genuine effort to resolve their dispute before making an application to the Court in relation to a parenting matter. The government does provide Family Relationship Centres which provide support services to parents.
Since 1 July 2007, an application to do with parenting matters can only be listed in front of a Court if a certificate has been filed with the application providing confirmation that attempting or attending family dispute resolution s60I (7) has taken place.
Both parties are required to attend and have to prove that have made a genuine effort at trying to resolve issues. If evidence is revealed that no real effort has been made, then the Certificate may still be issued with an attached highlighting that a party has failed to make any real effort to resolve the dispute.
Attendance at a family dispute resolution as laid out in s 90I (9) states that non-attendance can occur if there is any likelihood of any abuse taking place to a child or any other family violence. A consent order may mean attending dispute resolution will not be compulsory.
What is Meant by Mediation, Conciliation & Counselling?
An independent, unbiased mediator helps the relevant parties to pinpoint and discuss issues with the aim of reaching an agreement that is acceptable to both parties. Providing advice is not the job of the mediator - only organising the mediation.
An independent, unbiased conciliator helps the relevant parties to pinpoint issues that are under dispute and help in the development of solutions. The conciliator can offer advice which will help to reach an acceptable agreement.
A counsellor assists individuals, families and couples to resolve relationship problems and family conflicts by assisting individuals and families to achieve a clear understanding of how behaviour and feelings can affect relationships leads to alternative methods of handling certain issues and solving the conflict.
How Does a Lawyer Prepare a Client for Alternative Dispute Resolution?
Intake should be explained to the client, which is an interview that is led by the conciliator or mediator. The aim of this is to assess the client’s suitability for conciliation or mediation. The conciliator or mediator explains the procedure to each client while gaining an insight into the relationship’s history and the roots of the dispute.
Each client is interviewed on his or her own, but joint sessions can take place which allows both parties to offer their opinions. This can result in the drawing up of an agenda, and each item is then explored, and possible solutions are presented.
Impartiality from the conciliator or mediator is very important. Favouring one of the parties is not permitted, and confidentiality is expected. The aim is to get a negotiated agreement that is the best alternative even though sometimes compromises have to be made.
The lawyer’s role in these processes of ADR is to support his or her client and if required to draft consent orders if these have been agreed upon through ADR.
How does a lawyer decide what is right for his or her client?
A Lawyer Should Let the Client Know
- How mediation can have an effect on legal rights and obligations.
- What documentation is required before agreements are finalised
- Their legal rights, obligations and entitlements in relation to court what would be the best and worst outcome if the matter goes to court
- The legal outcomes of any agreements that have been proposed and the likelihood of the proposed agreement being approved by the relevant court.
- The lawyer should make sure all documents related to the case are free of ambiguities so that disputes are minimised in the future.
How Does a Lawyer Work With the ADR Professional?
The lawyer should ensure a regular consultation takes place between the different professions and that he or she attends any specific information seminars. The client should be made aware of the roles of the ADR professionals.
The conciliator or mediator can assist the lawyer with particular matters in dispute and can conduct conciliations or mediations on specific issues at short notice.
If a potential ADR client has not received any legal advice, he or she should be advised by the conciliator or mediator to get independent and full legal advice.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.