Yes. We encourage you to always seek legal advice prior to agreeing to dispute resolution. While dispute resolution is all about reaching an out-of-court agreement, you will still want someone to explain to you the dispute resolution process as well as what to expect if you have to litigate your issues.

An lawyer can explain your rights, review the facts of you case, and help you determine if dispute resolution is appropriate for your case. While dispute resolution is mandatory in some cases, in others it may not be the best course of action and an lawyer can advise you on such.

Finally, you will want to have an lawyer present at your dispute resolution. Having representation at a mediation or arbitration helps tremendously as your lawyer can advocate for you and advise you on the best way to proceed and whether you should agree to a proposed settlement.

You’ve Tried Everything – Is it Time for Family Court?

While many married or de facto couples terminating their relationship try to work things out amicably, it can be tough.  Here’s this person you thought you’d spend the rest of your life with, and now you don’t even want to sit next to them at the same table.  But it’s almost always best to avoid court, at least in the beginning.  We recommend trying a number of alternatives, before going to Family Court:

Work it out on your own

Sit down and talk to each other.  This can save both of you time and money.   And being able to work things out at such a difficult time in your relationship bodes well for the future, demonstrating that despite the breakdown, you can work together for what’s best for everyone.

Family Dispute Resolution 

Many couples start with family dispute resolution.   Trained practitioners in the field of family disputes, with additional training in law, social work and psychology work with a separating couple to help them through the process.   This is generally used when children are involved.

Mediation 

Mediation is led by a trained, objective person whose role is to help each of you define the issues at hand, manage the discussion and come up with solutions.  The mediator is interested in resolving the problem in the best way possible for everyone involved.  The mediator does not judge or make a final decision but will help you come to your own resolution.

Collaborative Divorce 

Collaborative divorce is similar to mediation but each side also has a lawyer and often a social worker or counsellor and a financial advisor are involved.  Together all sides work together to help both of you come up with a solution that works for everyone.  Among the incentives to make this approach work: if negotiations fail, neither sides’ lawyer can represent them in court.

When is it time to throw in the towel and go to Family Court?

Sometimes though, Family Court may really be the right way to go.  Here are some factors to consider when making the choice whether to continue (or start) alternative approaches or go to Family Court.

Imbalance of Power

If your partner is abusive or domineering or makes more money or controls the finances in the family, this may put you in a much weaker position if you are trying to work it out by yourselves.  While some neutral third parties like a mediator have experience handling these types of people, you still might find yourself stuck and unable to move forward.

Your Partner has an Aggressive Lawyer

Even the most well-meaning of people can fall under the spell of a tough lawyer.   If they are working towards “getting even” rather than being fair, it’s probably time to go to Family Court and let a judge decide.

Your Partner does not Communicate

Each side has to be willing to talk about the issues at hand, express their needs and wants and listen to the other side.  You can’t really work out a problem with someone who refuses to show up to meetings or won’t express what they want  or won’t agree to anything,  If this describes your partner – repeatedly – it may be necessary to find a good lawyer and turn to the Family Court.

Vanessa Mathews is accredited specialists Melbourne family lawyers Melbourne divorce lawyers who have the expertise and experience to provide you with the separation and divorce legal advice you are looking for.

Contact Byron Bay Family Law & Mediation Specialists, Accredited Family Law Specialist, Level 2, 599 Malvern Road, Toorak, Victoria, phone 1300 635 529, [email protected]

Byron Bay Family Law: http://www.mathewsfamilylaw.com.au

Family Court of Australia: http://www.familycourt.gov.au

Federal Circuit Court of Australia: http://federalcircuitcourt.gov.au

Unless your case involves family violence, child abuse or is urgent, family dispute resolution is required before court proceedings about children can commence.

The Court will usually appoint a family consultant to assist and advise parties.

The Court must consider the needs of the child and the impact of the proceedings on the child. The Court must conduct the proceedings so that the child is safeguarded from family violence and abuse. The proceedings should intend to promote cooperative and child focused parenting and should avoid delay and formality.

Arbitration is a form of dispute resolution where parties (or their lawyers) will present arguments to a chosen arbitrator who will make a determination to resolve the dispute. This type of dispute resolution is available to parties who are disputing financial matters, such as spousal support, property settlement, and financial agreements. Arbitration is not, however, an appropriate venue to settle disputes related to children.

Arbitration is almost like a hybrid of court proceedings and mediation. It is similar to mediation in that it is an out of court settlement method, however it differs from mediation in that in mediation the parties work to reach their own agreement. There are some advantages to choosing arbitration as a means to settle a financial dispute. For instance, this process allows the parties to retain much more control and it is more flexible than going to court. You get to choose the arbitrator, who is the ultimate decision maker, and it is also quicker and less expensive than the court process.

Arbitration can be especially appealing to those who have disputes about both children and financial matters. For these parties, they can address parenting issues through mandatory family dispute resolution and subsequently arbitrate their financial dispute without delay.

The short answer is no – what is discussed in family dispute resolution may not be used against you in court.

First, what is said during this process is protected by rules regarding confidentiality. Statements that you offer to a family dispute resolution practitioner, or to your lawyer in front of a family dispute resolution practitioner are protected. Such a practitioner can only disclose statements made during a previous family dispute resolution session in a limited number of circumstances. For instance, if the practitioner reasonably believes disclosure is necessary to protect a child from harm, or to report or prevent damage to property they may disclose statements indicating such.

While rules of confidentiality are implicated, you should also know statements made in a family dispute resolution are also inadmissible in court proceedings. While there are a few narrow exceptions to this rule, you should be aware that statements made during a dispute resolution session are generally not admissible in court.