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Is arbitration a growing option to resolve family law disputes outside of court?

Published March 9, 2017 by Ashlee T. Bowman

With court resources in crisis and clients waiting three to five years in the family court system, many lawyers are seeking to offer alternative dispute resolution (ADR) methods to clients. Other ADR processes such as mediation may have been exhausted and collaborative law may or may not have been tried.

While a trial may seem like the only way to end a dispute, that is not always so.  For spouses who can’t agree on disputes, but both nevertheless want to ‘exit’ the Court system, they can consider arbitration to resolve a financial dispute.

What is arbitration?

Arbitration is essentially ‘decision-making for hire’ – clients pay to have a ‘private’ trial conducted. Clients and lawyers can choose an arbitrator to make a final decision in their case about property and financial issues.

The arbitrator is often a retired Family Court Judge, or senior family lawyer (barrister from the family law bar, or senior solicitor). Clients will jointly instruct that person to determine their case, and to issue a written decision to bring it to an end.

Jones Mitchell senior partner Warwick (Rick) Jones is one of few qualified arbitrators in Australia. He has completed specialist arbitration training and is an approved practitioner acknowledged by the Law Council of Australia.

Why is it emerging now?

And while arbitration has been taught in universities around as a resolution option for family law disputes, there has been few specialist arbitration course modules. This has meant that many practitioners (outside ADR specialists) may have little or no understanding of arbitration law and practice.

It is only now with the court system in crisis that it is emerging as a more popular dispute resolution option.

How do arbitrations work?

For arbitrations in complex matters, they usually run just like a trial would run in Court.  Written evidence is filed beforehand.  There is oral examination of the spouses, and their witnesses, under oath.  Parties are often represented by barristers, and their solicitor instructs the barrister at the arbitration.  The lawyers deliver their arguments to the arbitrator at the conclusion of the evidence.  The proceedings are tape recorded (so that a transcript can be prepared if necessary).

Some parties, in cases where the resources are limited, or where the issues in dispute are less complex, even decide to have the arbitrator determine the matter on the written evidence, and accompanying submissions, only, and without a formal trial.   Similarly, where parties have been able to agree on all aspects, save for 1 or 2 ‘sticking points’, they can have a limited arbitration, where the arbitrator determines the contentious issues only, allowing them to then move forward with their agreed outcome.

Once the arbitrator is selected, he or she will work with the family lawyers for each party to deal with the procedural matters necessary to prepare for the arbitration – what evidence will be required; how many witnesses there will be; whether there are any objections to evidence or other preliminary evidentiary matters; the length of the arbitration and the sequence of witnesses.   If the pre-arbitration steps run into difficulty, the arbitrator can conduct further hearings to get things back on track, and ensure that the case is ready to be arbitrated on the agreed day.

The Rules of Court specifically provide that, if the two parties are already engaged in litigation, they can effectively agree to suspend that litigation and participate in arbitration.  Further, once the arbitrator’s decision has been delivered, those Rules provide a mechanism for it to be registered in Court, so that it has the same effect as an Order of the Court, and is therefore binding on and enforceable by the parties.

Absent agreement in other terms, the costs of arbitration (the arbitrator’s fee, and the cost of hiring the venue for the arbitration) are shared between the parties, even if those fees are paid by one party in the first instance.  For an experienced arbitrator, the fee will depend on the time required to determine the arbitration and prepare written reasons.  However, that cost is usually significantly less than the cost of a trial, particularly when the ‘hidden’ costs of delay until the trial are taken into account.

For those who disagree with the arbitrator’s decision, it can be appealed in the same way as an Order made after a trial.  However, that appeal can only be filed on the basis that the arbitrator incorrectly applied the law (whereas Court Orders can additionally be appealed on the basis of asserted errors of fact).  Some see this as an advantage – the decision of an arbitrator is arguably harder to overturn than a decision of a Judge, making the arbitration process more ‘final’.

In all respects, therefore, the arbitration looks like a trial would, save that the clients have ‘hired’ the Judge (the arbitrator), and the trial is being conducted, and paid for, privately.

Many clients say “But my former partner will never go for it”.  Certainly, there will be cases when an adversary is immovable, and wants their day in Court, no matter what.  But most people are not like that – they are stressed by the litigation, they are worried about the impact of conflict on any children, and payment of the legal costs of the process is a subject keeping them up at night.  Even those who have not had to pay any legal costs to that point (because their lawyer has deferred their fees) will have in the back of their mind that their lawyer will require payment out of their ultimate settlement.

The best way to illuminate the real impact of arbitration is to extend an invitation to the other party to participate, setting out a table containing the following key information:

Est. time to hearing Est. time to publication of decision Legal costs
Litigation Not less than [22 months]* Approx. 6 months [$120,000]*
Arbitration Approx. 4 months Up to 2 weeks [$60,000]*

* THIS INFORMATION WILL NATRUALLY VARY FROM CASE TO CASE, AND IS FOR ILLUSTRATION ONLY

As the client’s family lawyer, you will be able to help with the data to be inserted into this table, but the difference between the two options is usually compelling.  There are not many people who can ignore such significant savings in time and money.  When cast in the following way to an adversary – youcould be out the other side of this dispute in less than five months from now – arbitration becomes an attractive proposition for most people.

For those litigants who are languishing in the system, their children getting older, their businesses under duress, and the stress of that situation eating away at them day after day, arbitration can be the breakthrough they have needed.  With the help of their family lawyer, they can get ready for, and have, arbitration, a decision of that arbitrator giving them a final outcome in a matter of months, and at a fraction of the cost of waiting for a trial.

If your client has reached the point of ‘break down or break through’, take hope.  Arbitration may be the ‘exit’ your client is looking for.

For more information about arbitration, visit our arbitration FAQs, read our published articles or contact us to speak with one of our experienced Jones Mitchell family lawyers.

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Jones Mitchell supports Robina Community Legal Centre, not imminent funding cuts

Published March 9, 2017 by Ashlee T. Bowman

For many years, family lawyers from Jones Mitchell have volunteered their time and expertise to help support people without the financial means but in desperate need of legal assistance.

Lawyers Orlena Moloney, Kate GrahamBelinda Peterson, and Olivia Jennar-Bryant volunteer regularly at the award winning Robina Community Legal Centre (recently awarded the Community Legal Centre Member of the Year at the Queensland Law Society’s Innovation in Law awards).

Many cases presenting to over 40 community legal centres across Queensland are family law related.

But many of these people will have nowhere to access urgent legal support within the next four months if planned cuts to funding go ahead.

Community Legal Centres across the country are facing a 30 per cent drop in funding as of July this year. The Queensland Government has publicly stated that it needs to ‘find savings’ of about $1.9m and that these cuts will be made in funding community legal centres.

Community Legal Centres Queensland Director James Farrell said the loss of the local legal advice outreach service would have a major impact on the most vulnerable in the community.

The National Association of Community Legal Centres is still hoping to convince the Federal Government to wind back the planned funding cuts.

According to Mr Farrell only half the people who contact a community legal centre will have access to the help they need.

“The remaining 50 per cent are turned away because we just don’t have the resources we need to provide help for everyone who qualifies,” he said.

‘In July this year the Commonwealth Government will cut almost 30 per cent of funding to community legal centres across Australia.

“Our organisation is calling on Malcolm Turnbull and George Brandis to reverse this decision to ensure people across Queensland get the legal help they need and the justice they deserve.”

Jones Mitchell Lawyers fully supports the wind back of the planned funding cuts to community legal centres and will continue to support the Robina Community Legal Centre in their quest to provide legal assistance to vulnerable families.

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Drew Riley joins the team

Published March 1, 2017 by Ashlee T. Bowman

With both parents practising lawyers and always interested in their profession, Drew had a strong chance of going into law. But practising in Australia and in family was not always on the cards.

After growing up in Los Angeles, Drew moved to Australia to study law and joins two other pre-eminent male practitioners at Jones Mitchell Lawyers.

With a major focus on settling matters out of court, Drew is enjoying working in a field where he genuinely helps clients move on with their lives as quickly as possible.

Drew has a Bachelor of Law from Bond University and a Graduate Diploma of Legal Practice from QUT, and completed his study in July 2015.

With men a relatively rare commodity in family law, Drew joins a team of well-respected male practitioners – Rick Jones and Dan Bottrell.

Drew chose family law because he loves people.

“Family law is the most personal area of law,” Drew said.

“One of my best professional attributes is that I can remain calm in difficult situations. I believe this is a valuable attribute in family law as it helps clients relax in what is otherwise a very difficult time in their lives.”

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The impact of divorce and separation on a developing brain

Published December 14, 2016 by Ashlee T. Bowman

shutterstock_138520637-smallA keen interest of mine has always been parenting proceedings and ensuring that any parenting arrangement that is put in to place is void where possible, of any risk to the children and also in their best interests.

It is for that reason that I attended a recent workshop on the Developing Brain, Brain Development and Strategies for Best Practice.  I was naïve going in to that process, having really no knowledge of neuroscience and its impact upon us.  I had anticipated out of that session that I might learn further about the effect separation might have on the development of a child’s brain and their overall emotional wellbeing.

I learnt however as part of that process that it is not quite as simple as that.  There was some discussion about the ideal parenting arrangements for a very young child where the parties separate when they are newborns or infants given that it is the first thousand days of brain development that are important to a child. 

I also learnt from a parenting perspective, the differences between the development of the female and male brain.

It is an area that I think as communicators we should all have some knowledge of and understanding about how neuroscience may assist us in communicating with our clients but also how separation, divorce and family breakdown may impact upon brain development.

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Jones Mitchell wins top honours in the 2017 Doyle’s Legal List

Published December 4, 2016 by Ashlee T. Bowman

downloadJones Mitchell Lawyers is proud to announce three of the firm’s employees have been named in the prestigious  2017 Doyle’s Legal List.

Jones Mitchell Lawyers founding partner Rick Jones was named one of the Gold Coast’s ‘pre-eminent’ family lawyers alongside partner Dan Bottrell.

For the first time lawyer Orlena Moloney earned a ‘recommended’ status in formal recognition for her high level of skills when it comes to handling complex family law matters.

The Doyle’s legal listings are compiled annually on the back of extensive telephone and face-to-face interviews with clients, peers and relevant industry bodies.

Jones Mitchell Lawyers is Queensland’s largest family law firm practising exclusively in family and relationship law. The firm works with clients and other lawyers to resolve family law disputes, not only in Queensland but through Australia and overseas.

Established on the Gold Coast in 1990 by co-founder and current partner Rick Jones, it was the first Queensland law firm to specialise in family and matrimonial law.

With our extensive history as the Gold Coast’s longest standing specialist family law firm, Jones Mitchell has developed a reputation as the ‘lawyer’s lawyer’ and it is especially gratifying to be recognised by other lawyers and professionals who acknowledge our specialist family law expertise.

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The Christmas ‘survival guide’ for separated parents

Published November 25, 2016 by Ashlee T. Bowman

christmas-tree-with-white-ornaments-in-vintage-interior-000051540914_large-smallThe stresses of Christmas – buying gifts, planning Christmas lunch, finding places for relatives to stay.  These are things that despite the best laid plans, are hard to get right.

For separated parents, the advent of Christmas decorations appearing for the first time can lead to its own peculiar set of anxieties. These parents carry a Christmas responsibility far more extreme than the dilemma of whether or not to serve a hot lunch, and that is organising how their children will spend the Christmas holiday period, between their household and that of the co-parent. 

This is a subject which can have a direct impact on your mood and if there is tension on the subject, it can be a daily distraction for you, create negative energy which pervades the entire household, and impact negatively on the experience of your children.  What should be a happy time can easily be clouded by conflict.

As a family lawyer who has witnessed first-hand the stress of preparing for Christmas on parents and children, following are my recommendations to avoid letting parenting issues kill the joy of the festive season:

  • Plan ahead. Think about what happened last year, and in particular, what worked well, and what needed improvement.  That thought process will guide the development of your plan for Christmas 2016.
  • Communicate. Get in touch with your co-parent early.  Say that you’d like to agree on, and record, the arrangements for Christmas, well ahead of time, so that it is clear for you both, and so that you can put it on a calendar for the children.
  • Be co-operative. The process of thinking about last year will allow you to put yourself in your co-parent’s shoes.  If you had particular days (such as Christmas Eve) last year, you might consider offering those days to your co-parent this year, on the basis that you will have another day (such as Christmas Day) instead.  If you know your co-parent takes time off work on a particular week, or that his or her relatives visit at a particular time, consider offering those times, so that the children can enjoy time with their parent, and extended family.  All going well, your thoughtfulness will lead to some reciprocity.
  • Be specific. Do not leave things ‘to be agreed’ at a later point.  Record your specific agreement about such things as how the holidays will be shared (for example, half with Parent A, half with Parent B), on what day changeover will occur, what is to occur on the ‘special’ days (Christmas Eve, Christmas Day, Boxing Day), and who is doing the picking up and dropping off.  If there is a history of ‘going back’ on agreements, talk to your lawyer about agreeing to a Parenting Order which specifies Christmas and holiday arrangements (such an Order can include other general parenting issues as well).  A lawyer can also help you with a Parenting Plan (a less formal option to an Order) dedicated specifically to Christmas and the Christmas holidays.
  • If all else fails, take early action. There may be deadlines for the filing of Court applications for Christmas parenting time, so be sure to speak to your lawyer early about the options in terms of approaching a Court if it is clear that your co-parent will not engage in any discussion about Christmas arrangements, or that you will not be able to reach any sensible agreement.  It is compulsory for parents to have completed a form of mediation before an application can be filed, so allow enough time for that to occur.
  • Mentally prepare. Once the arrangements are agreed, let the children know.  Some parents choose to put how the holidays will be spent on a calendar, so that the children can mentally prepare for that period, and can be reassured that they will be seeing, and spending time with, both of their parents over the holidays.
  • Be practical. Christmas is a longer holiday period, and you and your co-parent may be travelling away from home for a family holiday.  If it is important that children bring a particular belonging with them (such as an iPad, for a long flight), ask for that well in advance.  Be mutual in relation to items which belong in your household (so that if your co-parent is taking the children on a beach holiday, to allow your child to take their surfboard will enhance their experience).
  • Gifts. Children may want to give both of their parents a gift.  If a gift will not be made at school, help them shop for a gift, and have it wrapped and ready to go as the children depart your household for Christmas parenting time in your co-parents’ household.  Children are often last-minute thinkers, and they will thank you (at least on the inside) for being organised.
  • Fun. The holidays are about fun.  Let the children know that they should enjoy the time they spend at their other parents’ house.  Sometimes that is hard for you to observe, but allowing your children to feel ‘free’ to be themselves in the households of each of their parents is something they will thank you for when they are older.
  • You have fun too. Though it is natural to feel a little blue when the house seems, with the children at your co-parent’s house, suddenly very quiet, use that time to have a little ‘you time’.  Do a little personal shopping.  Get to the cooking you’ve been meaning to try.  Lay by the pool and read a book.  Whatever helps you re-charge your ‘parent’ batteries.  The children will be back soon enough, high on the sweets they have received as gifts.  So enjoy the down time while it lasts, as your half of the holidays will be here before you know it.

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How running made me a better family lawyer

Published November 17, 2016 by Ashlee T. Bowman

belinda-marathonAfter completing my first triathlon earlier this year I thought I would set myself an even bigger challenge, the Gold Coast Marathon, which I completed in July.

After the weeks upon weeks and hours upon hours of running (and not to mention eating), I was ready. Wearing my Jones Mitchell t-shirt I stood at the start line, feeling slightly terrified. Thousands of bodies crowded around me. My stomach was churning.

Support crew at the ready, lining the Gold Coast Highway. I needed to finish. Luckily I did.

Looking back, retracing my steps and the emotions and pain I felt running that 42km journey, I understand the nerves and self-doubt that newly separated spouses feel when they make the very first call to our office. Unsure what to expect and what the future holds. Looking for guidance.

What got me to the finish line? All of the wonderful, kind and generous people who supported me.

What makes me different from other family lawyers?

I think it would have to be my caring and calm demeanour. My clients respect this and all the hard work that I put in.

As family lawyers, it’s our job to be the support crew for anyone going through divorce and separation. It’s our role to guide you through what is one of the biggest emotional stresses of a lifetime.

Running marathons is a sport that requires discipline and that methodology can be applied successfully across all areas of your personal and professional life.

The kind of qualities that you need to get to the finish line; time management, confidence, positivity and a decisive mindset are qualities that help you overcome any challenge and become a better person in all facets of life.

 

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