Options to Divorce without Court
Collaborative Practice, or Collaborative Law as it is also known, is our favorite method of dispute resolution.
This is where the parties and their lawyers form one team in order to reach a solution that is right for the family as a whole. Each party retains their lawyer and the legal advice and all of the other support that comes with a lawyer.
The parties and lawyers enter into an agreement. The agreement sets out the rules of negotiation and most importantly for clients, a condition whereby the lawyers agree not to continue to represent their clients should the matter proceed to contested court proceedings in the future.
This act of good faith by all parties shows a true desire by both the parties and the lawyers to reach an agreement and resolve all the issues that the parties are facing. The Collaborative process also allows the involvement of other collaborative practitioners known as “neutrals” such as accountants, financial planners, and child family psychologists. The benefit is that as a team we can discuss and reach agreement on things that the Courts normally wouldn’t be involved in such as questions relating to who will pay the electricity bill? Who will pay for the internet or pay tv? How should the parties communicate about issues relating to a joint investment or the children’s health or education, how do the parties want the children introduced to future partners, whose birthday is going to be important (grandparents, cousins, family friends, etc) and can the family attend celebrations together. All of those day to day questions that impact the future life and well being of the parties that a Court wouldn’t usually have time to address in any detail that would improve your life.
The result of any agreement reached during the collaborative process can be formulated into consent orders to be made by the Court. This agreement and the consent orders that follow are private and not reported as a decision of the Court.
Prior to commencing Court proceedings that relate to parenting matters, it is mandatory for parties to participate in a mediation conducted by a Mediator who has further qualifications as a “Family Dispute Resolution Practitioner” (“FDRP”). FDRP’s are Mediators who have received additional training that qualifies them to Mediate in Family Law matters relating to children. Mediators or FDRPs can be found in the Community either working in private practice like Kelly, or working for a non-government organisation such as Relationships Australia or Interrelate.
If the parties have separated and there are no children, or no children under the age of 18 years, Mediation is not mandatory prior to commencing court proceedings, however it can be a perfect way to resolve the dispute without the large expense of court proceedings that take up a lot of your cash and endless days off work.
The Mediation process is designed to ensure that parties are future focused and respectful. The parties and their lawyers come together with an independent Mediator of the party’s choice. The role of the Mediator is to assist and facilitate discussions so that the parties are able to reach an agreed position.
This usually occurs in one meeting but it can be more. A mediator cannot impose any “ruling” or make any “orders”.
If the parties are unsuccessful in reaching an agreement relating to parenting matters, the Mediator/family dispute practitioner can issue a certificate pursuant to section 60I of the Family Law Act to certify that the parties attempted to resolve their dispute. The parties may then commence legal proceedings.
The Legal Aid NSW sometimes assists parties seeking mediation or what is sometimes referred to as a “litigation conference” or “early intervention conference” by funding the costs associated with the conference. To see if you are eligible, please feel free to complete an application and deliver it to our office with the required documents (outlined on the application) and we will make an application on your behalf.
You can obtain an application for a grant of legal aid by visiting www.legalaid.nsw.gov.au .
You don’t have to go to Court! You can hire your own private Judge and have your matter resolved within a few months rather than a few years. Arbitrators are specially trained Family Lawyers, like Kelly, who have been approved to hear family law disputes relating to property. Arbitrators can not hear family law disputes that involve children.
Parties can bypass the public Court system and head straight to an Arbitrator.
However, if parties have already commenced formal Court proceedings, parties and their lawyers can agree to step out of the regular court list and opt for the services of a private Arbitrator. This process is faster than waiting for a trial date in either the Family Court or the Federal Circut Court (between 12 to 18 months wait).
The Arbitrator’s award is legally binding upon the parties in the same way in which a decision of the Court would be binding. Just as the decision of the Court can be appealed, so can a decision of an arbitrator, but only on a question of law. The result of any Arbitration is private and not reported publicly as a decision of the Court would be. In essence, you are hiring your own private Judge.
Arbitration is flexible and can be completed, including the hearing and the award by the Arbitrator delivered in as little as 2 or 3 months. It is the fastest way to receive a decision if you can’t reach an agreement with your partner.
We recommend our client’s attend Arbitration where possible if an agreement can not be reached at Mediation. We know first hand from watching our clients suffer for month after month, year after year waiting for their matter to even get to a point where the court will allocate a hearing date. Even then the hearing date allocated by the Court is usually 6 to 12 months away. This is heartbreaking for our clients who are left in limbo for 2 or 3 year waiting for a hearing and then after the hearing, waiting another 6 to 12 months for the Judge’s decision. Arbitration may seem an expensive option, however if you compare you share of the costs to what your legal fees would be for 3 years of litigation, it isn’t.
Kelly Stanford has written an article about her experience as an Arbitrator.