Consider the benefits of mediation before litigation
It is impossible to generalise as to the time when a dispute is ripe for mediation. Some are ripe very soon after they erupt and before the parties become deeply entrenched in oppositional positions and incur the cost of defending their positions. Some are not ripe until the parties have fought them out to the point of judgment or award in a court.
The two attributes most common to matters which cannot be resolved early are refusal to engage in mediation and unsatisfactory disclosure and valuation evidence.
Lawyers can help clients decide the method of dispute resolution. Family law client are generally unsophisticated and highly emotional. If the availability of mediation is not raised by the client's lawyer or if mediation is recommended against mediation is unlikely to occur.
Disclosure need not be a fixed or onerous obligation on parties. If disclosure is focused upon and confined to issues in dispute rather than seen as a means of burying or concealing information within a mass of irrelevant material the obligation need not be onerous. Attempts to clearly define issues and positions before commencing proceedings is sensible. Litigation is a serious and expensive step and should be seen as a dispute resolution means of last resort, rather than the “go to” or default mode.
Disclosure is fundamental to “genuine effort”. To enable effective negotiation information is required. The Family Law Act requires information to be provided in the form of disclosure and valuation evidence. Litigation is such a cumbersome, expensive and potentially destructive process that should be embarked upon with caution and with deliberate choice. Such a choice cannot be validly made when issues have not been clarified, positions formulated, advised and considered and relevant enquiry made to establish realities such as valuations or assertions and assumptions challenged and tested.
Justice cannot be obtained, consensually or by judicial determination, without disclosure and valuation evidence. To commence litigation without disclosure and enquiry is dangerous. The potential for parties in family law disputes to receive more timely, cost effective and self-determinative access to justice using mediation is an opportunity parties as consumers of legal services should not miss. Lawyers have a duty to advise their clients about the benefits of mediation. Clients who are encouraged down the litigation path should demand an explanation of why the easier path of mediation is not appropriate.