The Family Lawyers

I really don’t want to go to Court so are there alternatives I can use?

There are alternatives to Court that sometimes can be very effective in resolving separation issues. In fact, a competent Family Lawyer will discuss all of these options with you long before ever recommending court as a dispute resolution method. The important thing is to identify the one that suits your situation best.

1	You and your partner can engage in direct discussions. Sadly, that is not always possible when emotions are still raw or where there has been a history of abuse or violence or you would feel threatened or out of your depth.
2	If your partner is as committed to trying to find a solution to your issues as you are then you can go directly to a mediator without legal involvement. Organisations such as Relationships Australia and Centrecare offer reasonably priced mediation services and can be very effective where both parties are cooperative.
3	If either of these alternatives are not appropriate, then you will need to consult a lawyer (but make it a lawyer who does Family Law exclusively because in Family Law, experience really does count). Remember though that just because you consult a lawyer doesn’t mean you will inevitably end up in court. Most experienced family lawyers will only use the court process as a last resort. However, sometimes going to court is the best, and maybe even the only option. Most often there is another way, with the guidance of your lawyer, for you and your partner to reach agreement. Those different processes include: Mediation A Settlement conference Collaborative law Arbitration

What is Mediation?

This is where you and your partner meet to negotiate and that process is managed by a mediator. The mediator is an independent person who is trained to help:

Define the issues in dispute;
Manage the negotiations so that the issues are addressed; and
Help develop solutions to those issues.

If you have a lawyer they will usually attend the mediation with you.

What is a Settlement Conference?

A settlement conference is the name lawyers give to getting together with the other side, to negotiate. You could liken it to a mediation without a mediator. You and your lawyer meet with your former partner and, if they are represented, their lawyer, to try and work through issues. Sometimes a settlement conference is about the big picture — how much time the children will spend with each of you or who gets what property. Other times it might be to sort out preliminary matters like working through whether there is agreement about values of property and, if not, whether and by whom those assets or properties should be valued.

Settlement conferences are an alternative to the rather old fashioned and slow method of lawyers writing backwards and forwards (like a lengthy game in a tennis match).

What is Collaborative law?

The collaborative law process is designed to minimise conflict between you and your former partner by the lawyers working together with one another and with you in a respectful manner to find a solution that best meets both your needs. The two key elements are:

All negotiations take place in face-to-face meetings attended by you and your former partners and both of your lawyers. This means the process is open and everyone knows what is going on and avoids the second guessing that goes on when you think the other side has a secret agenda; and
Most matters are able to be resolved because everyone is committed to finding a solution. However if that doesn’t happen and court proceedings are to begin, both lawyers must disqualify themselves from acting further. This means the lawyers have a stake in the success of the negotiations and cannot fall back on asking a Court to take the matter out of the parties’ control.

Isn’t it a disadvantage if my collaborative Lawyer can’t continue to represent me if I need to go to Court?

You might think that the prospect of both lawyers having to disqualify themselves is a drawback. Quite the contrary, it makes the lawyers work harder for you to find an answer that pleases you both and keeps matter away from court.

Arbitration

This is a process that can best be likened to a trial before a judge. Through your lawyers, you and your partner arrange for a person with appropriate qualifications to hear your evidence and make a decision. It is unlike mediation or the collaborative process because the decision-making is taken out of your hands.

In practice, arbitration is not often used because of the expense and because it is possible to appeal the decisions to the family court or federal magistrates court if you are unhappy with the outcome.