There is an enthusiastic movement in Australia and overseas towards the use of alternative dispute resolution (ADR) in Family Law. For the uninitiated, ADR provides an alternative forum to the traditional courtroom battleground and litigation process.
The most well-known form of ADR is mediation but other ADR processes includes negotiation, conciliation, expert determination, round-table conference and arbitration.
Mediation offers individuals the opportunity to take a more collaborative approach in an open, empowering, and cooperative environment. Below we consider mediation and the advantages and risks of its use in the field of Family Law.
The key advantages of mediation in the context of Family law include:
- Reduced costs and time: Family Law proceedings can be very costly and take months or years to reach a final hearing. Private mediation on the other hand, can be convened at any time, and early on in a matter, without the need to commence Court proceedings.
- Less polarizing: Courts are inherently adversarial in nature, involving two parties facing off against each other in an often toxic and acrimonious environment. Mediation however aims to bring parties together on an equal footing and in a safe environment where issues can be ventilated allowing parties to better understand one another and their own expectations and positions.
- Empowerment: Mediation can be incredibly empowering for parties, providing a forum where they can make their own decisions that affect their future, rather than leaving their fate in the hands of a Judge.
There are some risks to consider with Mediation:
- Power imbalances: It is critical that your mediator can recognise these power shifts and take appropriate steps to bring back the balance.
- Delay: Some parties may use mediation as a delay tactic, attending a mediation with no intention to participate (let alone settle). On the other hand, even if a party attends mediation reluctantly, after having an opportunity to hear and be heard, in a controlled, safe, and neutral environment, and with the support and guidance of an expert mediator, they may leave the mediation feeling differently, despite their (worst) intentions, and often in agreement to resolve the dispute.
- Non-Disclosure: Parties may use mediation as a method of concealing assets or information which they would otherwise have to reveal or disclose under more formal processes of discovery (this issue can be circumvented by only scheduling mediation after full discovery has taken place – however this would detract from some of the advantages of mediation, including time and cost benefits described above). The failure to disclose assets may result in the re-opening of a dispute, which may render the initial mediation ineffective.
It is critical that if parties reach an agreement during or after a mediation, they enter into Consent Orders or a Binding Financial Agreement to document and enforce their agreement.
While there are some risks involved with mediation, engaging Warlows Legal’s Mediation Services can reduce those risks, and offer expert guidance in a state of the art purpose built facility.