Alternative Dispute Resolution

There are many ways to resolve family law issues or disputes that do not involve commencing court proceedings, which can be costly and more stressful. These options are known as "alternative dispute resolution" and include informal negotiation, mediation, family dispute resolution, conciliation, collaborative law and/or arbitration. The processes for each of these differ significantly.

For most family law matters, we recommend some form of alternative dispute resolution as a starting point to resolve a dispute. The rules of the Federal Circuit and Family Court of Australia, and also the best practice guidelines set by the Family Law Section of the Law Council of Australia, require lawyers practising family law to attempt to settle family law disputes by negotiation before litigation.

What are the options for Alternative Dispute Resolution (ADR)?

Alternative Dispute Resolution refers to a range of services conducted by third parties to help resolve disputes between parties. Common forms of ADR include:

• Family Dispute Resolution (FDR);
• Negotiation;
• Mediation;
• Court-ordered mediation;
• Conciliation Conference;
• Arbitration; and
• Collaborative law.

What are the benefits of negotiating a settlement rather than going to court?

Negotiation means a voluntary and usually informal process where both parties identify issues of concern and explore options to resolve those issues. Negotiations can be undertaken by telephone, in person, or in a joint conference room, sometimes described as a "round-table" conference.  Alternatively, negotiations may be undertaken by the parties exchanging correspondence setting out or attaching proposed Orders.

ADR is a practical way for parties to try to resolve matters and make future arrangements without going to court. An experienced family lawyer can guide and advise you on the most suitable form of alternative dispute resolution for your circumstances.

What is Family Dispute Resolution (FDR)?

FDR is a form of mediation facilitated by an independent and registered Family Dispute Resolution Practitioner (FDRP).

The Family Law Act 1975 (Cth) requires parties to a parenting dispute to attend FDR prior to the commencement of proceedings in the Federal Circuit and Family Court of Australia, except in the following circumstances:

• urgency (such as a threatened abduction or another serious matter); or
• the court is satisfied that there are reasonable grounds to believe that:
  • there has been child abuse and/or family violence by a party;
  • there is a risk of family violence by a party; and/or
  • there is a risk of child abuse if there were to be a delay in applying to the Court;
• where a party is unable to participate effectively in FDR (for example, due to an incapacity to do so or physical remoteness from an FDR provider); or
• the application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.

If you reach an agreement at FDR, you can enter into a parenting plan or file an Application for Consent Orders with the Court.

If you are unable to reach an agreement, the FDPR can provide you with a certificate pursuant to section 60I of the Act which allows you to then file an application in Court. Except in limited circumstances outlined above, you must obtain a certificate from a registered FDPR before filing an application in Court in relation to parenting proceedings.

How does mediation work in family law matters?

Mediation is a private process where a neutral third person, a mediator, helps the parties discuss issues, set a common agenda to resolve those issues and facilitate discussions to resolve the dispute.  

You can learn more about mediation in family law here.

What is court-ordered mediation?

At court, a Registrar or Judge may make orders that the parties attend a mediation conference or judicial mediation. In this circumstance, although the parties are required to attend mediation, if the matter cannot be resolved by agreement between the parties, then the matter returns to court and proceeds to a hearing.

What is a conciliation conference?

A conciliation conference in family law proceedings is like mediation in that an independent third person (a Registrar in the Federal Circuit and Family Court of Australia) assists the parties to reach an agreement and settle their matter.

The Registrar will look at the matter objectively and explore settlement options with the parties. The Registrar cannot provide legal advice nor make a decision on the matter; however, they can speak to the parties about the legal principles used when making decisions in matters.   The settlement negotiations during the conciliation are privileged, which means what is said in the conference or offers that are made cannot be used in Court later. 

Parties are required to make a genuine effort to try to resolve the matter at the Conciliation Conference. If the parties reach a resolution, the Registrar may make orders reflecting the agreement reached.

If the parties are unable to reach a resolution, the Registrar may make procedural orders reflecting the next steps and the identification of any outstanding issues to be addressed in order to reach a resolution.

What is Arbitration?

Arbitration is a private process where parties agree to have a qualified, experienced independent person (the arbitrator) make a decision about the dispute (or part of the dispute) after reviewing evidence and hearing arguments from both parties.

Arbitration is different from mediation because, unlike a mediator, an arbitrator has the authority to make a decision about the dispute.

Compared to traditional trials (hearings), arbitration can usually be handled more quickly and is less formal. Arbitration is, however, not used frequently in family law disputes, though it remains an option in some circumstances.

What does Collaborative Law mean?

Collaborative Law is an out-of-court settlement process where parties, their lawyers, and agreed professionals (such as accountants, financial advisors, psychologists, etc) try to reach an agreement together about the issues in dispute. Collaborative dispute resolution differs from other dispute resolution models because the parties and their lawyers all agree and sign a Participation Agreement to negotiate an outcome without resorting to litigation.

If the matter cannot be resolved, the lawyers who acted for the parties in the collaborative law process can no longer act if an application is made to the Court.

You can learn more about collaborative law processes here.