Generally the discussions of the parties in ADR are made without prejudice and are privileged communications that cannot be used subsequently by either party in the court proceedings, subject to very limited circumstances.
The benefits of parties engaging in ADR to resolve their dispute are numerous. Parties are able to settle their disputes on their own terms and this often brings a great feeling of relief. ADR is able to proceed in a timely manner and is more cost-effective than going to court. Many cases are resolved by using ADR.
Each case however is different and the appropriate type of ADR for each case will be different. It will depend on the complexity of the problems and on the attitudes and conduct displayed by the parties to date and their willingness to engage in an open and frank way manner to resolve their family law matters.
In some case there may disadvantages in using some methods of ADR especially in cases where one of the parties does not intend to compromise, when it is a complex case or where there is a power imbalance between the parties.
When being consulted, family lawyers are required to provide clients with information about the non-court based family services and courts processes and services. The Family Court of Western Australia provides a brochure called Marriages, Families and Separation explaining that ADR services are available. This and other brochures are available to be downloaded online from the website of the Family Court of Western Australia. The brochures of the Family Court provides parties with information about the legal and possible social effects of any proposed proceedings, the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce, and the steps involved in the proceedings, the role of family consultants and the arbitration facilities available to arbitrate disputes in relation to separation and divorce.
In Australia, subject to various exceptions, it is now a legal requirement that parties engage in ADR before they can commence or progress family law court proceedings. The requirement to engage in ADR is enshrined in the requirement of the parties to engage in the pre-action procedures before commencing or progressing family court proceedings. The PAPs apply to both financial and child-related proceedings, although the requirements of the PAPs are different in each case. If parties have not engaged in the PAPs, then courts may refuse a parties right to commence or progress proceedings. According to some family law commentators, parties’ rights to obtain access to justice have been curtailed by the requirement to engage in PAPs. However, in practice there is no need for the PAPs to restrict parties to having access to justice, as there are a number of exceptions that may be invoked if the circumstances of the case permit.
Counselling may be said to be more a form of therapy for the parties than ADR. In counselling, the parties may seek assistance to avoid a potential separation. Counselling however is not limited to parties trying to avoid a separation. In counselling, the parties are primarily focused on their relationship and the way the parties interact and communicate with each other. Counselling is a form of ADR in a sense because the parties are counselled about their relationship (whether separated or not) and how to cope and communicate better. A party may not be ready to move on. The parties may be at completely separate points of the grief cycle. If parties have emotional or anger issues, these are likely to prevent effective ADR. Counselling may help parties engaging in ADR.
Mediation is a process in which the parties engage in talks or negotiations to try to resolve their dispute. Mediation is conducted in the presence of an independent mediator. The mediator may be legally qualified or not. Beacon Family Law is able to recommend a mediation lawyer Perth. The mediator’s role is to not take sides and to assist the parties to resolve their family law issues by providing meaningful insights and encouragement. There are a range of family mediation services in Perth and rural areas. Mediation services in Perth include Legal Aid WA, Relationships Australia and Centrecare.
FDR is a form of mediation where the parties are assisted by a FDR practitioner. Parties can obtain a list of FDR practitioners by going to the relevant link on our Links page.
FDR practitioners help parties affected or likely to be affected by separation or divorce to resolve some or all of their disputes with each other and that practitioner is independent of the parties involved in the dispute.
In child-related cases, the parties are required to engage in FDR before they may commence proceedings in the family courts. The FDR practitioner will then issue the parties with an FDR certificate. This change was brought about by the Howard government with the intent that court proceedings would be used by parties as a last resort. However, the requirement for FDR has been criticised by commentators as being subject to abuse and causing injustice in some cases.
It is important that parties choose a reliable FDR practitioner because it has been noted that some FDR practitioners delay the completion of FDR even in circumstances where FDR is wholly inappropriate. Like any of the services available to parties, then quality of the service is only as good as the quality of the individual provider.
The exceptions to engaging in FDR quite limited and include the following:
- The application is urgent.
- The application relates to contravention of a parenting order of less than 12 months.
- The parties are unable to effectively participate in FDR.
Collaboration is a relatively new development in ADR. It has been used effectively in the United States and Canada for some time. It is available to parties in Australia, but it has not been wholly embraced by all family lawyers. In collaboration, the parties and their legal representatives sign an agreement that they will resolve their dispute without going to court. If court proceedings are then commenced, the parties must obtain different legal representatives. There are pros and cons for and against collaboration, as with any other method of ADR.
Arbitration is a process (other than the judicial process) in which the parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute. Arbitration is put forward as a manner in which the parties can resolve any part or all of the matters in dispute in their proceedings in whole or in part in a more timely and cost-effective manner than proceeding to a trial. However, arbitration, as with court proceedings, is realistically and practically, a last resort because it is still a relatively costly and technical way to resolve the parties’ issues.
As a general rule attending a MSC is now a compulsory part of financial procedures in the Family Court of Western Australia. If parties are legally represented in court proceedings then they will be required to attend a MSA with a mediator and their family lawyer. The mediator is usually an experienced family lawyer in Perth. The Family Court has said that proceedings will not be progressed in the event that the parties have not attended MSC without a valid reason.
Conciliation is a service provided by the Family Courts. A Registrar of the Family Courts is made available to the parties as a mediator. Conciliation is made available once proceedings have been commenced. In the Family Court of Western Australia, conciliation has been replaced by the requirement for the parties to attend a MSC. Conciliation is still made available to parties if the circumstances of the case are appropriate.