Alternative Dispute Resolution in Family Law

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Jones Mitchell, Lawyers, have always been keen advocates of Alternate Dispute Resolution. The firms senior partner, Warwick Jones, is:

A Mediator approved by the Queensland Law Society and on the Societys list of approved Mediators;
An Assistant Coach in Mediation with the Dispute Resolution Centre at Bond University;
An Arbitrator accredited by the Australian Institute of Family Law Arbitrators and Mediators and the Law Council of Australia.

There are three main forms of Alternate Dispute Resolution, all of which Jones Mitchell actively encourage, support and participate in:

Mediation
Arbitration
Early Neutral Evaluation (ENE)

Mediation

Introduction

Divorce is a time of change for families. Plans for the children, division of property and financial arrangements all need to be worked out. Divorce is also a time of great emotional upheaval. These changes and emotions can result in conflicts between family members. How these conflicts are resolved can influence a family's adjustment to divorce.

For most people, conflict is frightening and stressful. On the other hand, conflict can result in the productive airing of differences and can lead to creative solutions that address the changing needs of all family members. Too often in the divorce process, family members feel like bystanders while Solicitors, Judges and others work out these crucial issues. Even in the face of anger, fear and hurt, it is possible for people to negotiate an agreement which balances the interest of each family member and benefits everyone in the long run.

Mediation is one way for family members to resolve their own conflicts during and after divorce. The Mediator, a neutral professional, helps participants clearly define the issues in dispute and tone down the communication process so a rational discussion can take place and agreements can be reached. The mediator does not make decisions for the family but helps members of the family make decisions they believe are in everyone's best interest.

Mediation may not work for all families. Participants must want to resolve these issues and be willing to work toward that goal. This brochure is intended to help you decide whether or not Mediation can be of help to you.

Questions and Answers

What is Mediation? Mediation is a co-operative problem solving process where a neutral professional (Family Law specialist) assists family members in clearly defining the issues in dispute and reaching agreements that are in the best interests of the family. The Family Court's adopted definition of Mediation is;

"........a process whereby the participants, together with the assistance of a neutral third person or persons, systematically isolate dispute issues, in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs. Mediation is a process which emphasises the participant's own responsibilities for making decisions that affect their lives."

The Mediator does not take sides or make decisions for others but helps participants resolve misunderstandings and communicate more clearly with each other. Parents are helped to understand the needs of children, reach agreements in their best interests and develop a co-operative parenting relationship. Hostile and competitive feelings are reduced so that individuals can better adjust to the divorce and plan for the future.

How does it work? The disputing individuals meet together with a neutral, independent and objective professional who is trained to help parties solve problems in a co-operative manner. The Mediator guides the communication process so that everyone has a chance to be heard and personal feelings can be put aside. Conflicts are discussed one at a time and various solutions are explored so that the best possible agreement can be reached. The Mediator may offer suggestions and help parties develop options to resolve the issues, but the final agreement is up to the parties.

What types of disputes can be resolved? Mediation can be helpful in resolving marital conflicts between spouses and family disagreements between parents and their children. Mediation applies equally as well in disputes between defacto couples. It has been considered very beneficial to many couples experiencing disputes during and after marriage breakdown. The process is helpful in resolving property and financial disputes and particularly when children are involved. A Mediator can help parents understand the needs of children and make decisions that can be in their best interests. Mediation can facilitate working out solutions for the day to day care of children, division of property and financial arrangements. Communication skills established during Mediation often help with future planning and can establish a stage for co-operative post separation parental relationships.

Do we both have to participate? Because Mediation is a joint, co-operative problem solving process, it is necessary for both spouses to participate. Participants need not feel friendly toward one another but should be willing to work together to find solutions that will be fair and meet the needs of all family members.

Can Mediation help us get back together? You and your spouse should seek marital counselling if either one of you have any doubts about separation or divorce. Mediation is not marriage counselling. While feelings about the marriage (relationship) and the decision to separate/divorce may be discussed, the focus of Mediation is to reach agreements so that parents and children may better adjust to the separation and/or divorce and resolve future issues together.

What about the children? Separation/divorce is often a difficult time for everyone, especially children. It can be very comforting for children to see their parents working together to resolve issues rather than fighting and competing over them. In some cases, although rare, children may be invited to participate in Mediation so that parents can consider their needs and feelings as plans are made that will directly affect them.

Do I need a Solicitor? Mediation is not a substitute for independent legal advice. Solicitors can help their clients understand the law, make informed agreements, write up the final agreement and complete the legal divorce procedure. The Mediator focuses on helping participants reach their own agreements and does not represent either party.

Are agreements reached in Mediation legally binding? Mediation Agreements will usually be written up by the parties and the Mediator as an informal working agreement and then subsequently be filed with the Family Court as a Consent Order. When agreements are incorporated into a Consent Order, they are legally binding. Mediated agreements may be more flexible than Court ordered solutions and may be varied by mutual agreement as the needs of families and children change over time. Any change to an agreement previously filed with the Family Court and registered as a Consent Order, must be rewritten and then again filed with the Court in order to be legally binding. Parties should at all times consult their Solicitors in relation to these agreements and the procedure for filing and obtaining Consent Orders. Where either of the parties has a Solicitor, the Mediator will wish to discuss these matters with the Solicitor.

What if we cannot work it out? The Mediation process may not resolve all issues but even partial agreements can help participants narrow the issues and limit the time and expense of going to Court. A time out from Mediation and individual or couple counselling may help parties return to Mediation and resolve the remaining issues. Issues that cannot be resolved completely in Mediation can be returned to the Court for resolution.

What does it cost? Court-connected Mediation services (although not currently available) are usually provided free of charge or for a nominal fee. Mediators in private practice usually charge by the hour and fees are typically shared by the parties. Mediation is often less costly, both emotionally and financially, than litigation. There are other Mediation avenues available as well and your Solicitor can advise you in relation to those.

An Additional Note

It is important to remember that family conflicts are natural and normal, particularly in light of the strong feelings related to marriage breakdown, separation and divorce. Conflicts which linger over time can hinder a family's adjustment to divorce. How conflicts are resolved can also affect the adjustment process. Settlements which are reached by one party winning and the other losing rarely last. That kind of resolution usually breeds additional conflict.

The Mediation process redefines conflict as a family problem rather than one person's problem. The emotions of separation/divorce are effectively managed so that they do not hinder the communication process. Better communication leads to better agreements. Consequently solutions are reached by the productive airing of grievances so that the needs of participants can be addressed and solutions found which will be satisfactory to everyone.

Mediation may be an effective way for you to settle the disputed issues arising from your separation or divorce. Any additional questions that you may have about Mediation should be referred to your Solicitor.

Advantages of Family Law Mediation

It is a speedier, cheaper, less acrimonious way of resolving disputes than the current Court-related adversarial systems;
The parties retain the responsibility for decision-making, rather than giving it to a third party. This promotes better decisions because those who are most affected and who know the issues, are the ones making the decision. It is also consistent with a social and political philosophy of individual independence.
The informality of the process reduces hostility.
There is a greater prospect of a result in which both parties feel as though they have achieved a winning result rather than having a situation where either party feels as though they have had a loss.
Disputes resolved by mediation will survive longer and be more effective than decisions based on coercion. This is primarily so because the parties will have a greater psychological commitment to decisions which are the result of their own input.
The parties will often have some sort of ongoing relationship, particularly where children are involved, and mediation will assist separated couples to develop an appropriate form of communication.
It provides increased privacy for the parties.

Arbitration

The Family Law Act 1975 has been amended. The amendments came into operation in December 2000. Long awaited regulations subsequently came into effect on 1 March 2001 thereby creating Private Arbitration as a new option to resolve matrimonial, property and financial disputes.

The new regulations are clear in their intent, although there are some inconsistencies which will presumably need amendment as arbitration unfolds and with the passage of time. The Australian scheme has the following features:

There can be no arbitration unless the parties consent;
A Court can suggest that arbitration is appropriate, but cannot order the parties to arbitrate;
The parties can only arbitrate under the Family Law Act on disputes between them about property and/or spousal maintenance;
Disputes about child support or child residence (custody) or contact (access) predictably cannot be arbitrated at all;
Presumably, some disputants will choose to arbitrate on one aspect of a conflict (eg. valuation of a business) and then use the decision of the Arbitrator as the basis for settling by negotiation all other elements of the property dispute such as percentage, timing of distribution and apportionment of debts etc.... Alternatively of course, they can use the arbitration process to settle the whole of their property and financial matters in dispute;
Disputes over property with third parties (eg. creditors or relatives claiming a share of the matrimonial property) cannot be arbitrated under the Family Law Act. This is because:
The Arbitrator has no procedural power to join third parties; and
The Arbitrator has limited substantive power under the Family LawAct to make orders which affect the property rights of third parties.
Disputes over the property rights of a third party can be arbitrated if the third party consents, enters into a written Arbitration Agreement and that "third party" part of the order is registered under a state Commercial Arbitration Act;
Only certain "Arbitrators" can arbitrate and register his/her award under the Family Law Act.

There are a variety of different types of arbitration including:

Med-Arb
Standard Arbitration
Early Neutral Evaluation (ENE)
Documents-Only Arbitration
Short Arbitration

Who is eligible to be a Family Arbitrator?

Regulation 67B sets out the prescribed requirements for an Arbitrator:

A Legal Practitioner who is either accredited as a Family Law Specialist or has practised as a Legal Practitioner for at least 5 years with at least 25% of work done in that time in relation to Family Law.
Has completed specialist arbitration training conducted by a tertiary institution or professional association of Arbitrators.
Is included in a Law Council of Australia list of Practitioners approved by the Council.

The parties to the dispute must pay the costs of the arbitration directly to the Arbitrator (not into Court). The Arbitrator must give pre-arbitration written information about fees.

Once the Arbitral Award is registered in the Family Court, it has the same effect as an Order of the Family Court. (This is subject to a provision which currently allows 28 days to object after an Award has been served).

An Arbitrator can refer a question of law arising from the arbitration to the Family Court or to the Federal Magistrates Court and await the Court's decision.

How final is an Arbitration Award?

On the fact of the legislation, it is very final. The Family Law Act however, provides that the Award of an Arbitrator can be:

Reviewed on a question of "law" by a single Judge of the Family Court or the Federal Magistrates Court;
Varied by a Judge of the Family Court or the Federal Magistrates Court, where:
- The Award or Agreement was obtained by fraud; or
- The Award or Agreement is void, voidable or unenforceable; or
- In circumstances that have arisen since the Award or Agreement was made it is impracticable for some or all of it to be carried out; or
- The Arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the Arbitrator, was conducted.

The primary advantage of Arbitration is the opportunity for a dispute to be heard much sooner than if it went to Court and the parties can choose their decision-maker and make their own rules for their hearing.

Early Neutral Evaluation

Early Neutral Evaluation (ENE) is the process whereby both the husband and wife (or a de facto couple) in conflict over any issue or issues arising out of their marital breakdown can refer that issue or issues to an independent, neutral evaluator. The Evaluator (Family Law specialist) will then provide to both parties an Early Neutral Evaluation of the likely result if the matter were litigated in the Family Court.

ENE is an excellent opportunity for two parties and/or their lawyers to refer jointly the particular marital issue or issues in conflict to a properly trained and qualified Evaluator (neutral and independent). This can be done at the very earliest opportunity and can achieve, at minimal cost and delay, an expert evaluation of the most likely outcome if the matter is heard and determined in the Family Court. The Evaluator does not act as lawyer for either party. He or she remains at all times independent and neutral and offers his evaluation of the likely outcome.

We all know how expensive litigation can be. Indeed, even negotiation can be extremely expensive. We all have a professional duty to try and help our clients to resolve their matters in the best possible way. That duty includes the duty to make our clients aware of alternate means of dispute resolution, eg: Mediation. Not all cases are suitable for Mediation. There are of course many means of dispute resolution, including:

Negotiation
Mediation
Arbitration
Litigation
Capitulation
Early Neutral Evaluation (ENE)

Early Neutral Evaluation (ENE) is another means of dispute resolution. It is not designed to replace any of the above processes but rather, to be a further alternative. Some of the features of ENE include:

The parties can (but don't have to) attend together;
It may be that either or both of the parties have already sought legal advice. The two lawyers might decide that either before or after negotiation and/or mediation, it may be appropriate to try and resolve the dispute by referring both parties to an Early Neutral Evaluator (a legal biopsy) before incurring very substantial costs and generating unwanted conflict which often results from negotiation and failed Round Table Conferences;
Many times during Mediation, the Mediator can feel tempted to offer legal advice. The Mediator of course cannot do that. Not uncommonly, either or both of the parties will ask the Mediator, for legal advice. Again, the Mediator must refrain. Unlike Mediation, which empowers the parties to decide their own outcome, Early Neutral Evaluation unburdens those parties who do not want that responsibility and who prefer to have someone else resolve the conflict by making a decision for them and without having to go all the way through the extremely expensive, traumatic, conflictual, long and risky route which litigation entails;
The difference, of course, between Arbitration and Early Neutral Evaluation (ENE)is that in Arbitration, the parties agree to be bound by the decision of the Arbitrator, whereas in ENE, the Evaluator simply provides an evaluation/indication of a likely result if the parties decide to refer the matter ultimately to the Family Court (ie: the ultimate Arbitration);
Early Neutral Evaluation also offers the Evaluator (Family Law specialist) an early opportunity to have contact with both parties whereas a lawyer or barrister is limited to his or her own client only, and accordingly, can offer advice based on that limited opportunity. The evaluation process is not so limited.
The ENE process should, at the outset, set the parameters for the Evaluation, ie: in terms of time, information, documentation and cost. That is usually not a difficult process. In that regard, it is akin to Mediation. Further, the parties and the Evaluator can agree on other parameters, eg:
- Simply a most likely outcome;
- Possible alternate outcomes/quantum;
- Further alternate dispute resolution systems and an outline of those processes;
- Possible outcomes in terms of costs.

Clients need to be aware of the possibility to settle matters by Early Neutral Evaluation (ENE). Jones Mitchell's principal, Warwick Jones, and the firm's in-house Counsel, The Honourable Steven Strauss Q.C., are each separately available as Evaluators and each are happy to talk to you and answer any queries or discuss any aspects of Early Neutral Evaluation.