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Family Mediation and Alternate Dispute Resolution

Every family has problems, and, often, those problems can be resolved without going to court.

In fact, 75% of family dispute cases are at least partly settled out of court, through a process known as alternate dispute resolution or mediation.

Alternate dispute resolution isn’t suitable for every case, but it can be an effective way to move on with your life after a separation – and our Gold Coast family lawyers can help.

As one of the most experienced firms on the Gold Coast, we’ve been using our experience and expert knowledge to help families move forward since 1955.

It’s time to create the future you and your loved ones deserve.

Find out how alternate dispute resolution can help.

 

What is alternate dispute resolution?

Alternate dispute resolution (ADR) is a way for you and your family to move past conflict without a lengthy, expensive court trial.

In formal types of ADR, a trained, neutral professional helps you and your family explore options to negotiate a resolution to parenting matters or a property settlement.

 

Benefits of Alternate Dispute Resolution

Resolving problems privately through alternate dispute resolution can be a better path than taking your ex-partner to court.  Alternate dispute resolution can be used for a range of different issues.

Alternate dispute resolution has benefits that include:

  • Saving money.  ADR is less costly than a court trial.
  • Saving time.  ADR resolves issues more quickly than going to trial.
  • Giving you more control.  Asking a judge to decide a matter means you have no control over the outcome.
  • Being more amicable.  ADR can promote more a more positive relationship with your ex-partner, which, in turn, will positively impact your children, family members, and mutual friends.
  • Confidentiality.  The subject matter of an alternate dispute resolution is confidential, while court cases are typically open to the public.

Because alternate dispute resolution has so many benefits, Australian family law requires that separated parents undertake family dispute resolution (FDR), a specific type of alternate dispute resolution, before going to court (unless safety concerns are present).  

Just because an attempt to attend family dispute resolution is required doesn’t mean you have to agree to anything.  Alternate dispute resolution is a way to find common ground, but it doesn’t always work.

 

Types of Alternate Dispute Resolution

There are three types of alternate dispute resolution defined under the Family Law Act 1975.

  • Family Counselling
  • Family Dispute Resolution
  • Arbitration

 

Family Dispute Resolution

Family dispute resolution (FDR) is a type of alternate dispute resolution that many Gold Coast families undertake.  Sessions are conducted by an FDR practitioner, who must be an accredited, independent professional.      

One of the differences between FDR and other types of ADR, like family counselling, is that attending FDR is required by law before you can apply for a parenting order in court (these requirements are known as ‘pre-action procedures’), unless safety issues are present.   

 

To be able to apply for an order, your FDR practitioner must grant you a Section 601 certificate stating one of the following:

  • You didn’t attend FDR because your ex-partner didn’t attend
  • You didn’t attend FDR because the FDR practitioner didn’t think it was appropriate
  • You attended FDR, and both you and your ex-partner made a genuine effort to resolve your issues
  • You attended FDR, but either you or your ex-partner did not make a genuine effort to resolve your issues

 

You don’t have to get a certificate from an FDR practitioner if:

  • You’re making an application with the consent of your ex-partner
  • You’re making an application in response to an application made by your ex-partner
  • There has been family/domestic abuse in the past
  • There is a current risk of family/domestic abuse
  • Your application relates to a single issue that was the subject of a parenting order in the previous 12 months, and your ex-partner has breached that order or there are reasonable grounds to believe that they’ve breached the order
  • Your situation is urgent
  • Either you or your ex-partner can’t effectively participate in FDR (for example, due to remoteness or incapacity)
  • Certain other circumstances

Keep in mind that applying for a court order is very, very different from seeking legal advice.  You can talk to a lawyer whenever you want – in fact, the best time to get legal advice is before you enter FDR.  

A good lawyer will help guide you through the process, offer legal advice, and – perhaps most importantly – stand in your corner.  Family disputes are emotional, exhausting, and often frightening, so having someone who knows what they’re doing can be important for your mental health.  

Your lawyer also has a legal duty to act in your best interests.  In separations, your family and friends might struggle to be impartial, so having an independent source of advice is critical, especially if you’re unsure about important decisions like parenting arrangements and asset distribution.

If you need a legal professional who’ll stand by you in FDR conferences and in court, talk to one of our experienced Gold Coast family lawyers to find out how they can help.

 

Alternate Dispute Resolution FAQs

What is the family dispute resolution process?
FDR normally takes place through the following steps:

  1. You and/or your partner choose either a private or a public FDR practice.  Your lawyer will be able to give you advice as to the most suitable option.
  2. The FDR practitioner you choose will arrange a time and a place for you and your ex-partner to meet with them.  If you are using a private FDR practice, you will usually be able to bring your lawyer.
  3. At the FDR conference, the FDR practitioner will attempt to guide you and your ex-partner to a mutually agreed resolution.  Conferences take about four hours on average.
  4. If you and your ex-partner can come to an agreement, you can make it an informal or formal agreement.  Formal agreements include parenting plans, binding financial agreements, and consent orders.
  5. If you and your ex-partner can’t come to an agreement, the FDR practitioner may issue a Section 601 certificate that allows you to take the matter to court.
How much does family dispute resolution cost?
The cost of family dispute resolution depends on two things:

  • Whether you choose a private or public FDR practice
  • Whether you engage a lawyer or represent yourself

On average, though, a private FDR session without a lawyer will normally cost you between $1,500 and $2,500, depending on which practice you choose.  Keep in mind that this is an average range – some practices may charge significantly more.  Your lawyer will be able provide you with a more accurate estimate of legal costs and family dispute resolution fees.

What is family counselling?
Family counselling is a type of alternate dispute resolution conducted by a family counsellor, an independent, accredited third party who helps you and your family resolve issues relating to your relationship, separation, divorce, or parenting matters.

Family counselling is often the first ADR method that families try, because family counsellors take an approach that prioritises good communication, respect, and mental health.  When you talk to a family counsellor, they’ll help you work through any conflicts or problems in a safe, controlled environment – the focus is on creating healthy family relationships. 

Importantly, anything you say to a family counsellor is confidential.  They can’t talk about it to a judge, police, or anyone else unless:

  • You give them consent
  • What they’ve been told relates to child abuse
  • What they’ve been told indicates a risk of harm to others or the property of others
  • They are helping a lawyer who is independently representing the interests of an involved child

This makes family counselling a good place to start if you’re experiencing problems in your relationship.

What is arbitration?
Arbitration is a type of alternative dispute resolution process that you can use to settle family law disputes about property and finances.  It can’t be used to settle parenting or child support issues.

In arbitration, a qualified arbitrator listens to evidence and reads submissions from you, your ex-partner, and your lawyers, and then makes a decision.  Because arbitration in family law usually involves finances and property, the outcome is an arbitration award, where the arbitrator decides who gets how much. The arbitration decision is binding on the parties.

A court can refer you to arbitration if both you and your ex-partner agree to it.

Like counselling and FDR, arbitration has many advantages over going to court, including:

  • Control. You and your ex-partner control the process and can choose your arbitrator.
  • Speed. Arbitration settles matters much faster than going to court.
  • Privacy. Unlike a court case, arbitration is private.
  • Nuance. Arbitration is a good way to settle complex matters like the valuation of a business.

If you’re attending arbitration, it’s generally a good idea to hire a family lawyer.  You need someone who understands both the complexity of your situation and the process of arbitration so your case can be effectively presented to the arbitrator.

Starting Family Mediation

Family mediation is, generally, a better alternative than going to court.  

It saves you time, money and stress, and can facilitate a more positive relationship between you, your ex-partner, and your loved ones.

If you think you’re ready to start either counselling, family dispute resolution, or arbitration, the first step is to get in touch with an experienced family lawyer.

At Bell Legal Group, we offer free 30-minute consultations, which means you can get an idea of the best way to proceed without any charge.  

Once you’ve decided to proceed with us, we can start talking to you about which type of family dispute resolution is suitable for your situation and how we can deliver the best result for you and your loved ones.

 

If you are experiencing family or domestic abuse, you should immediately seek assistance.  If you believe you or someone else could be at risk of harm, call 000.  For a list of domestic abuse and mental health hotlines, click here.       

The content of this page is for information only. The content does not constitute legal advice and should not be relied upon as such. You should obtain advice that is specific to your circumstances before taking any action.

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