The true cost of divorce isn’t just measured in dollar figures but also the emotional toll and lost time for both parties.
Divorce proceedings that end up in a Court room increase the stress for separating couples and also increase the risk of an unfavourable outcome for one or both parties.
Outcomes in family law cases are discretionary and are therefore difficult to predict. Theoretically, ten different judges can determine the same case in ten different ways, without any of those decisions being ‘wrong’.
Separating couples have many options available to them to resolve their dispute outside the Court room through alternative dispute resolution, according to Jones Mitchell Lawyers Family Law Associate, Ailsa Day.
“Mediation, early neutral evaluation, arbitration and collaborative law all offer separating couples an attractive alternative to Court with the aim of resolving their matter with minimal conflict, delay, stress, cost and risk,” Ms Day said.
“Divorce is a time of great emotional upheaval and change, which can result in conflict between family members. How these changes and conflict are resolved can influence a family’s adjustment to divorce.
“One of the great strengths of alternative dispute resolution is both parties still have a voice in reaching a resolution rather than feeling like a bystander with Solicitors and Judges deciding on crucial issues that will affect the rest of their and their families lives,” Ms Day said.
“With alternative dispute resolution, even in the face of anger, fear and hurt, it is possible for people to be guided to negotiate an agreement balancing the interests of each family member and benefitting everyone in the long term.
“If alternative dispute resolution is pursued at an early stage in a family law dispute, it can potentially see a case brought to an end in months rather than years, saving couples significant legal costs as well as emotional distress,” Ms Day said.
Here are Jones Mitchell Lawyers Top 4 approaches for avoiding a costly divorce:
- Mediation is a co-operative problem-solving process where a neutral professional assists family members in clearly defining the issues in dispute and reaching agreements that are in the best interests of the family.
- The Mediator guides the communication process so that everyone has a chance to be heard and personal feelings can be put aside. The mediator does not make decisions for the family but helps members of the family make the decisions.
- Mediation agreements are usually written up by the parties and the Mediator as an informal working agreement and then filed with the Family Court as a Consent Order. When agreements are incorporated into a Consent Order they are legally binding but are more flexible than Court ordered solutions and may be varied by mutual agreement as the needs of families and children change over time.
2. Collaborative Law
- In a Collaborative Law approach, lawyers and their clients work in a co-operative, open way to reach a fair settlement. Both parties consent in a written participation agreement to be part of a collaborative process, to not go to Court and to be respectful of each other through the process. Crucially, both parties retain control of decisions rather than handing them over to a third party like an arbitrator or a judge.
- Through a series of face-to-face sessions both parties have an honest exchange of information and expectations on matters such as parenting and finances. Financial and family experts can also be part of the process to help come to a resolution.
- The objective is a durable solution that both parties can adopt, and which has low impact on families and relationships. The outcome can be documented in a binding legal agreement, just as if the parties had gone to Court. More information on collaborative law can be found at Queensland Collaborative Law.
Arbitration is very similar to going to court although the main advantage over Court is participants can choose their arbitrator and a resolution can usually be reached much sooner and less expensively. However, arbitration can only be used in particular circumstances:
- Both participants must agree on arbitration. A Court can suggest that arbitration is appropriate, but cannot order the separating couple to arbitrate.
- The participants can only arbitrate on disputes about property, spousal maintenance or other financial issues. Disputes about children cannot be arbitrated. Disputes over property with third parties (e.g. creditors or relatives claiming a share of the matrimonial property) cannot be arbitrated.
- If you choose arbitration, the arbitrator’s decision is final. There are only a few circumstances where the arbitrator’s decision can be reviewed by the Family Court or the Federal Circuit Court.
- Once the arbitrator makes a decision, an Arbitral Award is registered in the Family Court. This has the same effect as an Order of the Family Court.
4. Early Neutral Evaluation
Early Neutral Evaluation involves couples jointly engaging an independent evaluator (usually a retired court judge, barrister, or senior specialist family lawyer) to assess the case, and ‘predict’ the outcome which would be a likely result for them in a real-life trial situation. The separating couple can decide whether they adopt the evaluation, or look to use other forms of dispute resolution like mediation or arbitration. If parties do not reach an agreement using this approach, participants can work towards mediation or arbitration before they consider Court litigation. ENE is usually a stepping stone before deciding which path to take i.e. another form of alternative dispute resolution to reach an agreement or going to Court.