Mediation is similar to FDR and can also be used to resolve a matter. Many mediators also have the required qualifications to be an FDR Practitioner, but some do not. If your dispute relates to both parenting and property matters, you should check whether your mediator is also an FDR Practitioner.
Property disputes can also be resolved through mediation. The success rate in resolving matters at mediation is very high, particularly where an experienced mediator is engaged.
Mediation has all the same formal qualifications as FDR, namely that it is a confidential process, conducted on a ‘without prejudice’ basis.
It is important to note that your FDR Practitioner or Mediator is not there to make decisions about your matter. They are an impartial moderator engaged to assist both parties in resolving your matter.
Arbitration is a process where the parties choose a private arbitrator to decide how their property is to be divided, or whether spousal or de facto partner maintenance is payable. The parties control the process including selecting the arbitrator, how the arbitration will take place and when the arbitration will take place. The arbitrator must be appropriately trained and qualified to conduct the arbitration and must apply the principles set out in the Family Law Act 1975, as the court would do.
At the conclusion of the arbitration the arbitrator hands down their award – that is the decision they have made having regard to all of the evidence and the law. The award can then be registered with the Family court of Australia. There is a review process if either party seeks a review, but the review can only be about the law, and not any of the facts or evidence.
With the significant delays in the Family Law Courts many parties are turning to Arbitration to resolve their matter. Arbitration is a cost effective process that will allow parties to resolve their matter far sooner than through the Family Law Courts.
Collaborative law is the practice or working co-operatively to resolve your matter, with the mutural agreement of your ex-partner not to go to court.
The focus of collaborative practice is to minimise the conflict between parties by adopting problem solving methods to reach a settlement. In addition to specifically trained collaborative lawyers, other professionals such as accountants, financial advisors, mediators and psychologists can also be engaged to guide the parties to a settlement arrangement that benefits the family as a whole, despite the separation that has occurred.
To further each party’s commitment not to go to court, the parties and their lawyers execute a contract that the lawyers will withdraw from representing their client if the matter cannot be resolved without commencing court proceedings.
This does not prevent the parties from going to court as a last resort, but changes the dynamics of negotiation and focuses the parties on a swift, cost effective interests based resolution as opposed to positional based litigation.
Our Family Lawyer Fraser Murray is a trained Collaborative Lawyer and can assist parties in Collaborative Law matters.