Mediation and Arbitration
The family courts encourage all parties to attempt to resolve their disputes through alternate dispute resolution (ADR), including mediation and arbitration, and to only use litigation as a last resort. In fact, even when you commence proceedings in New South Wales, you will be forced to go through a court-ordered mediation or arbitration as part of the court litigation process.
Both forms of ADR provide a cheaper and quicker alternative to litigation.
Mediation is a conference held with all parties present (and their legal representatives in most circumstances) and a facilitator called a mediator, who’s aim is to facilitate and assist the parties in reaching an agreement between themselves about the issues in dispute.
Mediation can occur at any time and has many benefits, including:
- providing a cheaper and quicker alternative than proceeding to court;
- allowing the parties to express their views on the issues in dispute;
- allowing the parties to be involved in the decision-making process;
- allowing the parties to hear an independent third party provide their view on the matter and the issues dispute; and
- giving the parties greater control in the outcome of the matter.
Simple mediations can be held by using organisation such as Relationships Australia, CatholicCar or Unifam. When used at part of the court litigation process, most matters will be referred to a conciliation conference which is a type of mediation held at the Court with a Registrar acting as the facilitator. Sometimes, the Court may direct the parties to attend private mediation.
Private mediators are current or former legal practitioners such as retired Judges, Senior Counsel or specialist family lawyers with specific mediation training. When using a private mediator, it is more likely that you will be able to request the mediator to provide an evaluative assessment of each party’s case to help the parties in being realistic in their expectations and providing the best chance possible for the parties to reach a settlement.
A mediator cannot force the parties to come to an agreement and it cannot make orders binding on the parties. It is purely a process for you to get together with your former spouse in the hope of achieving a resolution which can then be formalised through legal respresentatives.
Arbitration is a more formal process, whereby the Arbitrator acts as the Judge and considers the evidence and listens to the submissions of each party or their legal representative.
At the conclusion of the arbitration, the arbitrator will reach a binding decision, which is called an award.
Arbitration has many similar benefits to mediation in that it provides a much quicker and cheaper alternative to a court hearing. However, it allows you or your legal representative to put forward all of your evidence and submissions in support of case so that the issues in dispute can be determined by an expert arbitrator.
In the family jurisdiction, when you commence court proceedings, it is likely that it will take between 12 – 18 months before you get a final decision. However, because arbitration is a private process, it can take place in a matter of weeks after the parties have their cases prepared.
Arbitration is a very effective way to resolve your dispute if you are unable to reach an agreement with your former spouse. Like mediation, it can be arranged prior to commencing court proceedings as its own process or, more often, it is a very useful tool used to promptly have your dispute determined after court proceedings have been commenced.