Mediation and Collaborative Law is a style of dispute resolution where a neutral, independent person (the mediator) helps you and your ex-partner resolve any disagreements. This can be for division of property, child support, parenting issues or spousal maintenance. Mediators do not give legal advice, but it is often very helpful if the mediator is legally qualified and understands what type of outcome might result from an application to the Court. They assist the parties to negotiate an agreement that is fair. Aylward Game offers a mediation service, with James Noble, who is our highly experienced consultant solicitor, a qualified mediator.
Mediation is a voluntary process
Mediation is usually a voluntary process, but the Family Court may order that you and your ex-partner participate in mediation, depending on your circumstances. Depending on the level of conflict and personal dynamics of the relationship between you and your ex-partner two Mediators may be necessary.
If the Family Court orders mediation or you and your ex-partner agree, you may be allowed to have your lawyer present in the mediation. The Mediator’s role is to assist communication between you and your ex-partner so that you can have open discussions and negotiate a settlement. If you choose to use mediation outside of the Court process, you may decide that only you, your ex-partner and the Mediator will be part of the Mediation process.
Role of the Dispute Resolution Process
The Mediator’s aim in the dispute resolution process is to facilitate open communication between you and your ex-partner so that you can:
- identify issues of the dispute;
- generate options to address these issues; and
- agree upon ways to resolve the issues (i.e. ‘settlement’).
The Mediator’s role is essentially a neutral one. The Mediator will:
- not take sides;
- work with both you and your ex-partner to help you negotiate your own decisions together; and
- not represent either of you in Court either before or after the Mediation;
- not provide legal advice.
Characteristics of Mediation
- All decisions in mediation will be made by you and your ex-partner, not the Court or anyone else.
- Mediation will help you to identify important issues that relate to your assets and finances and/or care arrangements for your children.
- Mediation is readily accessible, making it fast and efficient.
- Mediation is a popular form of alternative dispute resolution.
Family Dispute Resolution
Family Dispute Resolution is a form of mediation and is a compulsory step before proceedings about children can be issued at the Court. This process endeavours to help separating couples reach agreements that are in the best interest of their children. It also encourages separating couples to parent cooperatively. Parenting Plans or agreements are frequently used to assist in this process.
Collaborative Practice – The New Alternative To Litigation
Collaborative practice is a popular dispute resolution method developed in the United States in the early 1990s. It has gained popularity in the United States, the United Kingdom and Canada, and Collaborative practice is now available to assist people in Australia to resolve their disputes.
Benefits of Collaborative Practice
- You have the benefit of being advised and supported by your lawyer at all times.
- The outcomes are generally faster than traditional negotiation methods and most certainly quicker than court outcomes.
- The outcomes are certain and more likely to be long lasting because they are owned by you as you assisted in creating the outcomes.
- The process promotes co-operation in the future particularly where long-term investments are involved.
- Resolutions are reached in a dignified and respectful way.
- The outcomes are often tailor made and more creative providing fairer settlements.
Collaborative practice may be suitable for you and your ex-partner if both of you:
- wish to spare your children from the emotional damage litigation can cause;
- accept personal responsibility in moving forward and reaching agreement;
- believe it is important to create healthy and more holistic solutions for your futures; and
- understand and embrace the necessity to make full and frank disclosure about financial issues.
Collaborative practice may not be suitable for you and your ex-partner if:
- either of you:
- have a primary aim to seek revenge against your former spouse or partner;.
- are looking for a “soft option”;
- believe the procedure will pressure your ex-spouse or ex- partner to agree to your wishes;
- want to avoid giving certain financial information to your ex-spouse or ex-partner; or
- your relationship has experienced domestic violence or any form of abuse.
If this is the case, the lawyers will first have to determine whether Collaborative practice is appropriate. It may be that other professionals are required to be involved to assist and support you through the process and to ensure that your interests are promoted and protected.
Make your own decisions
The Collaborative approach can enable you and your ex-partner to resolve your issues respectfully, so that you can arrive at dignified solutions to your dispute with your ex-partner and maintain a sound relationship with each other in the future, especially if long term financial interests are involved.
In the Collaborative practice process, emphasis is placed on reaching agreement, rather than having to ‘battle it out in Court’.
A commitment to non-confrontational dispute resolution
In the Collaborative practice you will be asked to sign a Participation Agreement so that you demonstrate your commitment to resolving your differences with your ex-partner in a respectful manner, with full and frank disclosure of information and with a minimum of conflict. Open communication will build an environment of trust.
This trust will help you, your ex-partner and both of your lawyers to work together in finding workable solutions to your dispute.
In Collaborative practice, you and your ex-partner and your lawyers will work together to share information and to arrive at solutions through a series of meetings. Your lawyer will never negotiate deals without your active participation. A major benefit of Collaborative practice is that you and your ex-partner can each contribute to the compromised agreements that you make together, instead of having to settle with a decision imposed upon you by the Court.
Total ‘out-of-Court’ settlement with Collaborative practice
At the commencement of the collaborative process all parties and their lawyers will enter into a Participation Agreement. A key feature of the terms of the Participation Agreement is that the parties agree that they will not litigate their matter in the Family Court.
This means that if either you or your ex-partner decides to commence proceedings in Court and continue with such proceedings during the collaborative process, your collaborative lawyer will not be able to represent you in the collaborative process, they will only be able to refer you to another practitioner to handle your Court case.
How does it all work?
Collaborative practice is different from going to Court. You will be in a room with your lawyer as well as your ex-partner and their lawyer. Both lawyers will be properly trained in the collaborative approach. We all work together towards the common goal of resolving the dispute between you and your ex-partner, with emphasis on retaining your dignity and best interests.
You will have your collaborative lawyer advising and assisting you throughout the negotiations. The playing field will be more even between you and your ex-partner, because you and your ex-partner will have your respective lawyers to support you, as well as other professionals if necessary and with your consent.
The integrated approach of Collaborative practice
Collaborative lawyers often work with other professionals, such as accountants, financial planners, valuers, counsellors and mental health professionals, who are trained in the collaborative approach. These people will work together with your collaborative lawyers with your consent with a focus on developing an overall dispute resolution package that will provide both you and your ex-partner with security and direction.
In Collaborative practice, your lawyer and your ex-partner’s lawyer will draft your agreement in legal terms.
In Collaborative practice, the lawyers provide advice to their clients and help them assess realistic options. The lawyers then support the clients through the negotiation process to reach an agreement.
Costs associated with the Collaborative Practice and Mediation
- Initial consultation with your lawyer.
- Assistance of the lawyer to complete a short history statement, if necessary.
- Assistance of the lawyer to provide full disclosure of documents, if necessary.
- Attendance by the lawyer in the Mediation session and in the Collaborative meetings.
- Attendance by the lawyer in the Mediation, or throughout the entire collaborative process.
- Preparation of consent documents by the lawyers.
- Involvement of the lawyer throughout the collaborative process.
Other information relating to costs of Collaborative practice and Mediation
- Discussions and agreement on the payment of the fee are often part of the initial discussion in the collaborative process.
- The fee may be a shared arrangement.
- The costs of the Mediator will be agreed prior to the commencement of the process.
- Because of the short duration for the preparation for attending on and completion of the Mediation and Collaborative practice processes, the costs are limited.
Cost of Collaborative practice Mediation compared to Litigation
Because Mediation and the Collaborative process can resolve matters speedily and amicably, the financial and emotional damage normally caused by Litigation can be avoided by you, your family and your friends.
Mediation and Collaboration can also serve to minimise conflict between you and your partner, so that you can make amicable decisions regarding your finances and other personal interests. It will form a basis for your ongoing relationship with each other.
How is Collaborative practice different from traditional Court proceedings?
When one party commences Court proceedings they file an Application with the Court setting out the orders they want the Court to make. Both parties then go through a sequence of Court proceedings and conferences and hearings that can take many months or possibly years before they have a final trial where a Judge makes a decision as to what orders will be made.
Through Collaborative practice, separating couples and their lawyers work together, sometimes with other professionals such as relationship therapists, valuers, accountants and financial planners, to find out what each party wants and how that can be achieved. The Court is not involved in this process and no documents are filed with the Court whilst the negotiations are ongoing. If an agreement is reached, the parties can elect for it to be drafted as a consent order to be lodged at the Court or to be incorporated in a binding financial agreement.
Don’t be frightened to make enquiries and conduct your own research. It is better to be empowered with legal and other knowledge than to worry about problems that may not exist.
Invitation: You are welcome to arrange an obligation free 20 minute consultation with one of our qualified lawyers, to discuss your circumstances.
Efficiency of Collaborative practice and Mediation
Dispute resolution via Mediation or Collaborative practice can be arranged in a timely manner and satisfactory outcomes can often be reached relatively quickly. With either method, negotiations usually take place either over a number of sessions, or during one day, depending on the complexity of the dispute or the situation. By using either Mediation or Collaborative practice settlements can usually be reached after 6 to 8 hours of negotiation. Collaborative practice may take longer depending on the complexity of the circumstances and whether other support professionals need to be consulted.
We can advise you during the process, whichever option you choose, and if appropriate we can also represent you in any meetings. When you are engaged in an alternative dispute resolution process it is important to remain focussed on achieving a resolution, and to accept that compromise may be necessary.
Aylward Game Solicitors, keeping you ahead of the game.