You don’t have to go to Court

When you separate from your spouse or partner, the thought that you will need to fight them in Court and devote your time, emotion and money to that fight might be just as stressful as the separation itself. 

But it doesn’t have to be that way.

There is a robust process both inside and outside of the Court to achieve fair outcomes through what is termed “alternate dispute resolution”.

What is alternative dispute resolution?

This term means a lot of different things, but primarily refers to direct and facilitated negotiation.  Which pathway we use depends on what we learn when we listen to our client.  There is no ‘one size fits all’, so different kinds of dispute resolution work better for different people.  

A direct negotiation process may start with understanding your case and its strengths and weakness and those of your former spouse or partner.  Then the direct negotiation may be picking up the phone to talk to the other lawyer or exchanging letters or arranging for a round-table conference.  This direct negotiation can involve making “without prejudice” (confidential) offers, then whittling down the differences and issues until a solution is reached.  Direct negotiation is a very good way to resolve a matter. If each party has a good lawyer, the matter can usually be resolved quickly.  An experienced family lawyer will understand the range of sensible outcomes and understand they can save their client time, emotion, and cost by getting quickly to the same outcome a Judge would reach 12 or 18 months later.

A different alternate dispute resolution approach using mediation can settle most cases.  There is nothing tricky about mediation – a majority of family law cases go to mediation where they settle.  When compared with direct negotiation, there are some advantages and disadvantages of mediation.  The first advantage of mediation is that everyone is in the same place at the same time and concentrating on the outcome.   A dozen offers can be exchanged within a few hours.  If this exchange occurred by letters between lawyers, that many offers back and forth can take months.  Probably the biggest advantage of mediation is that there is an independent expert to do two things.  First, they can convey an offer or comment from one side to the other without the emotion which attaches in direct communication.  Second, if a party wants to make an offer which is not sensible, the mediator can talk to that party and their lawyer about whether there is any chance of getting that outcome in in Court.  This reality testing regularly ensures that unreasonable offers aren’t made.  Our firm’s statistics confirm that just over 80% of matters we take to mediation are resolved at the mediation or within a week of it ending. 

The Family Courts have recognised the effectiveness of mediation and alternate dispute resolution.  On 1 September 2021, new Rules commenced in the Family Courts.  These Rules require that unless there are specific or exceptional circumstances, a family law application cannot be filed until after parties have exchanged relevant documents, exchanged offers and participated in dispute resolution.

If you are daunted by a recent separation, there is never really much need to worry about an expensive, time consuming and exhausting battle in the Family Courts. Most cases can and do settle by alternate dispute resolution.

Berry Family Lawyers have the expertise and empathy to get you through this difficult time and get the best outcome for you.