Best Practice:
Alternative Dispute Resolution
1 What is Alternative Dispute Resolution?
1.1 Alternative Dispute Resolution (ADR) in the practice of Australian familylaw includes counselling, mediation, family dispute resolution conciliation, arbitration and collaboration. At an early stage, unless it is clearly inappropriate to do so, the lawyer should explain the various ADR processes and advise clients on the benefits and/or limitations of these
processes in their particular case, as well as the role of lawyers in supporting each process. There is sometimes confusion of terms for the various processes.
1.2 Lawyers should note that clients referred from the Federal Magistrates Court or the Family Court may use different terminology in referring to the same alternative dispute resolution service, which may be confusing. Counselling, mediation, family dispute resolution and conciliation, may all be terms applied to methods used by these courts to deal with parenting disputes.
Counselling
1.3 Counselling is a process in which separating couples and other family members attempt with the help of a counsellor to discuss both the practical and emotional issues to do with their relationship. They may wish to improve their relationship, clarify whether the relationship should continue, whether reconciliation should take place or how to deal with the emotions arising out of separation. This process examines the underlying emotions and their causes, and attempts to bring about change in the relationship and individuals. The relationship is the primary focus of this intervention. Counsellors are available in community based agencies,and in private practice. Relationship counselling which focuses on family dynamics may be called family therapy.
Mediation
1.4 Mediation is a process in which separating couples, whether or not they
are legally represented or there are legal proceedings, agree to the
appointment of an impartial third party. The mediator does not have an
advisory role and has no authority to make any decisions with regard to
separating couples’ issues (which may relate to separation, divorce,
children’s issues, property and financial questions or any other issues that
may arise). Separating couples are assisted to reach their own informed
decisions through negotiation without adjudication. This is a practical
problem solving approach which may be focused on future issues as well
as dealing with past and current issues.
Family Dispute Resolution
1.5 Family Dispute Resolution is a process in which a family dispute reso -
lution practitioner helps people affected, or likely to be affected, by separ -
ation or divorce to resolve some or all of their disputes with each other.
Family dispute resolution is compulsory in most parenting matters before
proceedings can be issued. The family dispute resolution prac titioner
must assess the people involved in the dispute to determine whether
family dispute resolution is appropriate. The family dispute resolution
practitioner must be satisfied that this assessment has con sidered whether
the ability of a person to negotiate freely in the dispute is affected by:
● a history of violence (if any) among the people involved in the
dispute
● the likely safety of the people involved
● the equality of bargaining power the risk that a child may suffer
abuse
● the emotional, psychological and physical health of the people
involved, or
● any other matter that the family dispute resolution practitioner
considers relevant to the proposed family dispute resolution.
1.6 If, after considering these matters, the family dispute resolution prac -
titioner is not satisfied that family dispute resolution is appropriate, the
family dispute resolution practitioner must not provide family dispute
resolution.
1.7 Where family dispute resolution begins but part way through the practitioner decides it is no longer appropriate to continue because of the above matters, the practitioner may stop providing family dispute resolution. A certificate can then be issued stating the person attended family dispute resolution but part way through the practitioner decided it was not appropriate to continue.
1.8 Apart from assessment about suitability for family dispute resolution the family dispute resolution practitioner has no authority to make any decisions with regard to separating couples’ parenting issues, but rather has a duty to assist parents to reach their own informed decisions through negotiation, with access to information about the basic developmental needs of children including the negative impact of exposure to ongoing conflict between parents. This is an awareness raising and practical problem solving approach which is often focused on improving communication between parents while discussing future issues during the development of a parenting plan as well as dealing with past and current issues.
Conciliation
1.9 Conciliation is the process best known to family lawyers and has been traditionally offered by the Family Court Registrars dealing with property matters and the Family Consultants dealing with children’s matters. This was formerly called ‘conciliation counselling’. Conciliation is a process in which the parties to a dispute develop options, consider alternatives, and endeavour to reach agreement. The conciliator may have an advisory role on the content of the dispute or its resolution, or give expert advice on likely court outcomes, but does not determine what the outcome will be.
Arbitration
1.10 Arbitration is a process similar to judicial determination. Separating couples agree to refer the claim to an independent third party and accept the decision. It is a formal process in which the arbitrator assesses the facts presented by each party and determines the dispute according to law. Legally binding arbitration can only be used for property and spousal maintenance disputes.
Collaboration
1.11 Collaboration is a process where both parties, their lawyers and any other required professional advisors such as child welfare experts or financial experts, commit to resolve the dispute between the parties in dedicated meetings. The focus is on the parties underlying “interests”, rather than positional bargaining. An important aspect is that at the beginning of the collaboration the parties sign a contract and agree that if their dispute is not resolved and one of them takes the matter to Court, each party must retain new lawyers.
Counselling
2.1 As outlined above, counselling usually refers to a therapeutic process aimed at resolving emotional issues which may or may not be associated with family law matters.1.9 Conciliation is the process best known to family lawyers and has been traditionally offered by the Family Court Registrars dealing with property matters and the Family Consultants dealing with children’s matters. This was formerly called ‘conciliation counselling’. Conciliation is a process in which the parties to a dispute develop options, consider alternatives, and endeavour to reach agreement. The conciliator may have an advisory role on the content of the dispute or its resolution, or give expert advice on likely court outcomes, but does not determine what the outcome will be.
Arbitration
1.10 Arbitration is a process similar to judicial determination. Separating couples agree to refer the claim to an independent third party and accept the decision. It is a formal process in which the arbitrator assesses the facts presented by each party and determines the dispute according to law. Legally binding arbitration can only be used for property and spousal maintenance disputes.
Collaboration
1.11 Collaboration is a process where both parties, their lawyers and any other required professional advisors such as child welfare experts or financial experts, commit to resolve the dispute between the parties in dedicated meetings. The focus is on the parties underlying “interests”, rather than positional bargaining. An important aspect is that at the beginning of the collaboration the parties sign a contract and agree that if their dispute is not resolved and one of them takes the matter to Court, each party must retain new lawyers.
Counselling
2.2 Counselling is also the term used by the Federal Magistrates Court for referrals to alternative dispute resolution service providers to deal with children’s matters. Some services provided after the Federal Magistrates Court has referred parties to counselling will be paid for by the Federal Magistrates Court.
2.3 For counselling services in your locality refer to details available through Family Relationships Online at www.familyrelationships.gov.au.
3 Mediation/Family Dispute Resolution (FDR)
3.1 Not all cases are suitable for mediation/family dispute resolution. All Government funded and accredited mediation/family dispute resolution agencies and/or practitioners have a procedure for assessing the suitability f the clients for mediation/family dispute resolution. For mediation/ family dispute resolution services in your locality refer to details available through Family Relationships Online at www.familyrelationship.gov.au.
3.2 Mediation/family dispute resolution would not be appropriate in the following circumstances:
● at a time when there are child protection issues or a risk of child abduction
● where clients do not have the willingness or capacity to mediate or their mental competence is in question
● before urgent applications
● where a particular issue can only be adjudicated upon by the court, for example, in paternity cases
● financial proceedings where either party is bankrupt, or
● where bail conditions or a family violence order are in place restricting one party having contact with the other party.
3.3 Mediation/family dispute resolution may also not be appropriate in the following circumstances:
● where domestic violence has occurred or is still occurring. If clients still want to mediate in such cases, the lawyer should discuss the risks and what can be done to make them feel safe during the mediation (for example, separate appointments, shuttle mediation (defined below), teleconferences). Any intervention or restraining orders need to be examined to establish if separating couples are able to be seen together or whether separate appointments must be
arranged
● where the position of one party is so much stronger than the other that the difference is likely to be beyond the capacities of mediators/practitioners to address, or
● where reconciliation may be possible and counselling or marital therapy may be more appropriate.
3.4 Mediation/family dispute resolution usually involves the separating couple meeting with the mediator/family dispute resolution practitioner at the same time. However, alternatives may be determined at the assessment stage, for example shuttle mediation where separating couples meet
separately with the mediator.
3.5 From time to time the dispute between a couple may involve a wider group of family members than just the couple. Family members may include stepparents, grandparents, aunts, uncles, children, elders and signifi cant others. Any of these people may participate in the mediation, provided that this has the agreement of the couple and the mediator.
3.6 Children do not usually attend mediation sessions with their parents, but can participate in a variety of ways. For example, they may be interviewed eparately by a person (sometimes the mediator or practitioner) or a Child Consultant who is specifically trained to work with children and who may provide the children’s views as input to the mediation/family dispute resolution.
The Benefits of mediation/family dispute resolution
3.7 Lawyers should explain to their clients the potential benefits of mediation/family dispute resolution. These include:
● when a family law dispute arises, it is generally better if the couple can jointly sort out the practical arrangements for the future
● the aim of mediation/family dispute resolution is to help separating couples find a solution that meets the needs of all involved, especially any children, and one that they both feel is fair. At the end of mediation/family dispute resolution, those involved should feel that there has been no ‘winner’ or ‘loser’ but that together they have arrived at sensible, workable arrangements
● mediation/family dispute resolution can help to reduce long term tension, hostility and misunderstandings and so improve communication between separating couples. This is especially important if children are involved, as separating couples may need to cooperate over their care and upbringing for some years to come, and
● mediation/family dispute resolution is not only cheaper and quicker than litigation, it may also save on emotional stresses.
Timing of mediation/family dispute resolution
3.8 Mediation/family dispute resolution can take place at any time. Couples who are thinking about separation may want to use the process to explore the options in relation to parenting or finances. Separating couples engaged in the litigation process may want to attempt a settlement to avoid the final hearing.
Lawyer assistance during mediation/family dispute resolution
3.9 Mediation/family dispute resolution generally works best when supported by independent legal advice. Separating couples may consult their lawyers at any stage in mediation/family dispute resolution, but this is particularly important when disclosure and settlement proposals are being considered. When referring clients to mediation/family dispute resolution, and while clients are going through mediation/family dispute resolution,lawyers should:
● explain that the mediation/family dispute resolution process should be supported by independent legal advice
● confirm that any agreement about financial matters is not directly binding between the separating couple until it has been approved by the court as a consent order or documented in a binding financial agreement
● suggest that seeking advice from lawyers between mediation/family dispute resolution sessions can be helpful in seeing whether proposals are appropriate
● assist clients to provide disclosure where necessary and assess any disclosure which takes place in mediation. The use of a Financial Statement as a standard for disclosure in mediation/family dispute resolution is recommended
● give advice about settlement proposals as and when required, bearing in mind the long-term interests of clients and/or any children
● bear in mind the cost of mediation/family dispute resolution as opposed to negotiation through lawyers or court proceedings● explain that the mediation/family dispute resolution process should be supported by independent legal advice
● confirm that any agreement about financial matters is not directly binding between the separating couple until it has been approved by the court as a consent order or documented in a binding financial agreement
● suggest that seeking advice from lawyers between mediation/family dispute resolution sessions can be helpful in seeing whether proposals are appropriate
● assist clients to provide disclosure where necessary and assess any disclosure which takes place in mediation. The use of a Financial Statement as a standard for disclosure in mediation/family dispute resolution is recommended
● give advice about settlement proposals as and when required, bearing in mind the long-term interests of clients and/or any children
● give advice about any untenable position either clients or their partners may be adopting
● assist clients to reach a decision and encourage clients to raise issues in mediation/family dispute resolution as appropriate
● emphasise that proposals made in mediation/family dispute resolution are not binding between the separating couple. It is very important that separating couples have access to independent legal advice when proposals are made
● where agreements about financial matters have been reached, draft and lodge consent orders, or draft a Financial Agreement;
● implement the consent orders or Financial Agreement
● following mediation/family dispute resolution where the client has reached no firm proposals, discuss the reasons for stopping the mediation/family dispute resolution process, note what if anything has been achieved so far, and discuss the options
● where separating couples have produced interim proposals, discuss the position and any potential difficulties, including whether there is a need to apply for any interim orders, and
● advise as to the availability of Legal Aid for mediation/Family Dispute Conferencing.4 Conciliation
4.1 Where separating couples may need stronger direction to reach agreement they may be referred to conciliation. This can be voluntary or court ordered and can be court-based, conducted by approved Government funded community agencies that also offer mediation services, or by private mediators.
4.1 Where separating couples may need stronger direction to reach agreement they may be referred to conciliation. This can be voluntary or court ordered and can be court-based, conducted by approved Government funded community agencies that also offer mediation services, or by private mediators.
4.2 An assessment will be made as to whether there are issues of safety and, if so, whether the conciliation should be with the couple in the same room or shuttled, either at the same time in different rooms or at different times.
4.3 Separating couples can benefit from conciliation in that there is a saving of time and costs. The input from an expert, particularly as to the needs and best interests of children, may assist the settlement.
4.4 Clients voluntarily seeking conciliation in children’s matters may be required to pay.
4.5 As noted above, if the Federal Magistrates Court refers a parenting matter it may be termed ‘counselling’ in the referral and may be paid for by the Federal Magistrates Court.
4.6 Federal Magistrates Court property conciliations may be conducted by Family Court Registrars in their capacity as Federal Magistrates Court Registrars. Other agencies may also at times conduct property conciliations on behalf of the Federal Magistrates Court and are paid for this service by the Federal Magistrates Court. Referrals can also be made to private mediators.4.3 Separating couples can benefit from conciliation in that there is a saving of time and costs. The input from an expert, particularly as to the needs and best interests of children, may assist the settlement.
4.4 Clients voluntarily seeking conciliation in children’s matters may be required to pay.
4.5 As noted above, if the Federal Magistrates Court refers a parenting matter it may be termed ‘counselling’ in the referral and may be paid for by the Federal Magistrates Court.
4.7 A court may order a property conciliation after a property application is lodged in the Court Registry. Lawyers attend and all court documents are exchanged before the conciliation. At the conclusion of a successful conference final orders can be drafted and lodged with the court as consent orders.
5 Arbitration
5.1 Arbitration offers a number of benefits to clients. These include:
● choice of an independent arbitrator5.1 Arbitration offers a number of benefits to clients. These include:
● choice of venue and time for the arbitration
● an opportunity to determine a single issue which is preventing the settlement of the whole dispute
● an opportunity to decide on the procedure required in the determination of the dispute, since limiting procedural complexity may reduce the cost of the proceedings considerably, and
● certainty of a decision within a predetermined time frame.5.2 When referring clients to arbitration, lawyers should explain that:
● an arbitration is a determination of the dispute by an independent third party
● the award made by the arbitrator is binding unless one of separating couples seeks to review the award (available only on a point of law) or seeks to set aside the award on one of the restricted bases permitted under the Family Law Act, and
● being legally represented at an arbitration may be of considerable benefit.The Role of Lawyers during Arbitration
5.3 When clients have elected arbitration their lawyers have an active role to play in:
● assisting the client to negotiate the arbitration agreement with the other party or their lawyer, and attending the preliminary meeting to establish the procedure to be followed
● ensuring the correct documents are delivered to the arbitrator and to the other party, and
● instructing Counsel or acting as the client’s representative at the hearing.5.4 After the hearing the lawyer may have a number of roles. The award may need registering, advice may be required regarding an appeal, and the decision may require legal expertise if it is to be properly effected.
6 Which Mediator, Family Dispute Resolution Practitioner, Conciliator, or Arbitrator?
6.1 All family dispute resolution practitioners, mediators or conciliators who deal with children’s matters are required by the Family Law Act to promote an outcome which is in the best interests of the child and therefore will not be ‘neutral’ in this regard.
6.2 Lawyers who refer clients to alternative dispute resolution should refer their clients to family dispute resolution practitioners, mediators, conciliators, and arbitrators who have undertaken appropriate training and have relevant experience.
6.3 A list of accredited family dispute resolution practitioners is available at www.familyrelationships.gov.au. A list of private mediators is maintained by the Australian Institute of Family Law Arbitrators and Mediators at www.aiflam.org.au6.4 A list of approved arbitrators is also maintained by the Australian Institute of Family Law Arbitrators and Mediators pursuant to the Family Law Regulations. This list is available at www.aiflam.org.au. Only arbitrators who are on that list are permitted to conduct arbitrations under the Family Law Act
7 Collaboration
7.1 Collaboration works best where neither party has any fixed view or position at the beginning of the collaboration about the outcome that they want to achieve. It is thus best suited to cases where there have been no other formal negotiations between the parties.
7.1 Collaboration works best where neither party has any fixed view or position at the beginning of the collaboration about the outcome that they want to achieve. It is thus best suited to cases where there have been no other formal negotiations between the parties.
7.2 There are a number of trained collaborative lawyers (and other professionals such as child welfare experts and financial planners) across Australia. Practice groups of collaborate professionals exist in most states and territories. A collaboration should only take place involving professionals trained in collaborative practice
8 Timing of mediation, family dispute resolution and arbitration8.1 It is important that lawyers carefully consider and give advice on the timing of any referral to mediation, family dispute resolution or arbitration. Under pre-action procedures in the Family Courts alternative dispute resolution will normally happen prior to the filing of an application. However, even if the case is unsuitable for mediation at the outset, the possibility of a later referral should be kept under review.
8.2 The timing of the referral is a matter for careful consideration, depending on the facts of the case and the attitude of the separating couple to early resolution. For example, it may be appropriate to refer children’s disputes to mediation/family dispute resolution early on. On financial matters it may sometimes be appropriate to deal with disclosure before referral to arbitration, mediation or family dispute resolution.