A more peaceful path…
More and more frequently, parties to separation are looking to alternatives to Court litigation and opting to take a more collaborative and cooperative approach to finalise their Family Law matters. We at D’Angelo Legal encourage parents and parties to separate and explore their options for settlement before turning to the Court, which should always be looked at as a last resort and only used if absolutely necessary. It is because of this that one is not permitted to commence legal proceedings against their former partner unless they have taken part in some form of Alternative Dispute Resolution.
Given the very high volume of cases in the Family Court of Western Australia, litigation does not always present the easiest path. Court matters can take a considerable amount of time to finalise (if there is no immediate urgency) and can result in considerable legal fees (if you enter Court with legal representation). It is because of this that Court proceedings should be carefully informed and thought out before commencement.
More commonly, families are turning to alternative dispute resolution methods to help resolve their matters. These methods can include:
Negotiations: Normally done in writing, negotiations are incredibly commonplace. They normally take the form of written offers exchanged between two parties, until a final agreement is reached, on any Family Law matter.
Family Dispute Resolution Mediation (FDR): In a Family Law setting, mediation is best conducted by an FDR practitioner. FDR mediation can be used for all Family Law matters.
FDR practitioners are professionals with a Family Law, social work, counselling (or related) background who have taken on further training to assist parties to a Family Law dispute to reach a resolution. All FDR practitioners are registered with the Attorney General’s office and must continue to meet strict professional standards.
FDR mediation is the most common form of Family Law dispute resolution. The process involves the two parties engaging in exploratory conversation (with or without their lawyers present) with the aim of addressing the pressing issues between them and working together to find solutions to their problems. FDR mediation has a lot of success in the community and helps many parties each year reach their own agreements in a timely basis, keeping them from entering the Family Court system.
If you look to engage in mediation, you will be asked if you have obtained legal advice beforehand. As the majority of mediations (at least entry-level mediations) will not take place with lawyers present, it is important you consider getting legal advice before you attend your meditation. Importantly, you can’t commence proceedings in the Family Court of Western Australia in relation to non-urgent children’s matters without having at least tried to undertake FDR mediation with your former spouse.
Collaborative Law: Collaborative Law is a particular style of dispute resolution, whereby the parties agree in writing at the very commencement of their matter that they will not threaten to, or actually, commence Family Court proceedings on the matter. Utilising the services of trained Family Law and financial professionals, as well as mediators and, sometimes, mental health professionals, the parties take a holistic and cooperative approach to resolving their Family Law matters.
Utilising Collaborative Law can result in a quicker and more peaceful resolution to your matter. Your costs will be higher as you and your former partner take on more professionals in the process, though they are there to answer every practical question on the matter and to help ensure that final agreements are going to work and serve the parties they affect. If final agreements can’t be reached, then the parties can break the Collaborative Law agreement and look at going to the Court for assistance, however they must dismiss their existing legal team to do so.
Arbitration: Arbitration is an alternative dispute resolution practice used in Family Law property matters, whereby an experienced arbitrator considers the positions, views and evidence of both parties and makes a decision for them about how a settlement might take place. The arbitrator stands in the shoes of the Court and makes a decision for the parties when they commonly can’t, but without lengthy Court delays, saving on legal fees down the track.
These are just a snapshot of the dispute resolution models available in Family Law. Aside from reducing the load in the Court, alternative dispute resolution aims not just to solve the main issues in dispute between two parties but also to try to satisfy the root causes for their conflict.
The family law solicitors team at D’Angelo Legal in Perth can help advise you on the alternative dispute resolution style which might suit your matter best, as well as which professional services to consider enlisting for the task. Our passion is serving our client’s best interests and providing them with the most family and child-focused Family Law services we can. If you are interested in learning more, head to our “Contact Us” tab above to find out how you can speak with one of our Family Law team