Best Family Law Processes

Which family law process is best for you?

 

Separating spouses (both married and unmarried) have many issues to resolve – including choosing the most appropriate decision making process.  Early selection of the best process helps separating spouses reach the best possible agreements plus save time and money, and minimise acrimony.

The following chart compares the five main process choices.

 

Features

Mediation

(also known as family dispute resolution)

Collaborative Practice

Lawyer to Lawyer negotiation

Arbitration

Court litigation

The process

Voluntary – both spouses must agree. Non adversarial. Voluntary – both spouses must agree.Non adversarial. Can focus on needs and interests of each spouse but usually adversarial and positional. Participation voluntary. Voluntary – both spouses agree including choosing arbitrator. Adversarial. Adversarial.Used when other side refuses to participate.

Series of three way meetings between the mediator and spouses.  Lawyers may also attend (if both spouses agree).

Series of four way meetings of spouses and solicitors (as well as child consultants, financial professionals and coaches if both parties agree). Negotiations are generally conducted by written communications and telephone calls between solicitors in the absence of spouses. Process is flexible and can be agreed on by parties. Typically between 1 to 3 meetings with lawyers.

Many court matters settle with negotiations based on likely court determined outcomes.  These are unpredictable and may not meet all needs of the spouses and children.

Aims for win/win or best possible outcome for both spouses and the children.

Aims for win/win or best possible outcome for both spouses and the children. Lawyers endeavor to get as much as possible for their client and as least as possible for the other spouse. Decision can be made from documents or with short submission or full hearing including oral evidence and cross examination.

Lawyers endeavor to get as much as possible for their client (little as possible for the other spouse).

May take a few weeks.

May take a month or two. May take a few weeks or a number of months. Lawyers aim to persuade arbitrator to give their client the maximum consistent with the law applied by courts.May take a month or two.

Can take 2 or 3 years to proceed to final hearing.

Role of mediator

Mediator is neutral and independent.  Gives information and identifies issues, but does not give advice.  Facilitates constructive discussion and negotiations.

Not applicable. Not applicable. Arbitrator is neutral and independent. Chosen by agreement of the parties.  Applies the law (as applied by courts) as they see appropriate.

Judge is neutral and independent, but parties have no choice over court allocation of judge. Must apply the law.

Role of lawyers

Spouses can seek advice prior to joint meetings and have lawyers review final agreements.  Lawyers may attend at joint sessions if both parties wish.

Advise and attend with clients at four way meetings.  Act as a “team” to help spouses reach fair agreements.  Communicate with and act non-adversarially with the other spouse. Advise and negotiate with each other – generally in absence of clients. Advise and advocate for client.  Adversarial to other lawyer and spouse.  Does not communicate with other spouse.

Advises and advocates for client.  Adversarial to other lawyer and spouse.  Does not communicate with other spouse.

Impact on relationship between spouses

Can improve communication and relationship between spouses, and assist them to establish post separation parental alliance.

Can improve communication and relationship between spouses, and assist them to establish post separation parental alliance. Tends to create acrimony and mistrust between spouses.  May damage their relationship as parents. Not designed to support or foster a new post separation relationship.  Adversarial approach may damage relationship.

Causes spouses to become adversarial.  Damages communications and relationships – especially as parents.

Costs

Least expensive.  Fixed fees for joint sessions.  No retainer.  If experts required (valuations, accounting advice, child consultants), spouses typically agree single experts at shared cost.

Less expensive than court.  Hourly fees.  No retainer.  Total fees depend on number or meetings which spouses control.  If experts required (valuations, accounting advice, child consultants), spouses typically agree single experts at shared cost. Less expensive than court.  Hourly fees.  Total fees unpredictable and depend on amount of negotiations between lawyers. Less expensive than court.  Fees reasonably predictable once arbitration process agreed.

Hourly fees.  Total fees unpredictable and depend on approaches taken by each side and the court.  Retainers commonly requested.  Court filing fees.  Expert’s fees and possibly barrister’s fees.

Which process is right for you?

You can speak for yourself and listen to the views of your spouse.

You prefer the support of a lawyer but wish to avoid court You prefer to avoid direct interaction with your spouse and hand responsibility over to lawyers. Either you or your spouse are not capable or willing to communicate and negotiate directly.

You wish a judge to decide what to do with your children and property.

You don’t want to leave it to a judge to decide what’s best for you and your children.

You don’t want to leave it to a judge to decide what’s best for you and your children.

Do not wish to make joint decisions, and prefer that an arbitrator do so. Can also be suitable where mediation or negotiations have not resolved all issues.  Only financial matters – not children.

You believe your spouse will be violent or dishonest in a non-adversarial process.

 

Matthew Shepherd is experienced in lawyer-to-lawyer negotiations and court proceedings.  He is also an accredited mediator, registered family law property arbitrator and registered family dispute resolution practitioner, and a trained and experienced collaborative practitioner.   Matthew can help you identify the best decision making process for you.