Alternative Dispute Resolution (ADR) is an umbrella term that encompasses all forms of dispute resolution outside of litigation. ADR processes within family law commonly include; mediation, arbitration and collaborative law. ADR provides for a beneficial pathway for many disputing parties as it can allow for parties to settle disputes outside of court which can be beneficial in lowering costs and aid in maintaining healthy ongoing relationships between parties.
In family law proceedings Mediation is often compulsory for all parties before starting proceedings. For example, The Family Law Act 1975 (the Act) requires parties to obtain a certificate from a registered family dispute resolution practitioner before filing an application for an order in relation to a child under Part VII of the Act. Family dispute resolution like mediation is a process by which parties in dispute can be supported by a facilitator or mediator to communicate with one another about the relevant issues in their dispute and how to resolve the dispute. The goal of mediation is for parties to reach an amicable solution without having to start court proceedings.
Mediation however, is not a suitable form of dispute resolution for all parties. Arbitration can allow parties to engage in a more determinative process. Arbitration involves the settling of a dispute between two parties by an impartial third party. The impartial third party is the Arbitrator and they determine an ‘award’ that the disputing parties agree to accept. An award can be financial or non-financial. An award unlike a judgement in court is only binding if the parties prior to entering the Arbitration process agree for it to be binding.
Alternatively, collaborative law provides for another form of ADR, suitable for parties who may not be suited to mediation but who do not want to engage in court proceedings. In the collaborative law process the parties and their lawyers enter into a contract in which they agree to negotiate an outcome without resorting to litigation. The process involves transparent negotiations between parties that take an interest based approach with the aim of maintaining an amicable relationship between parties
A new ADR process is developing that combines the processes of both Mediation and Arbitration, dubbed ‘med-arb’. Parties involved in ‘med-arb’ first engage in mediation, if this is unsuccessful the parties then engage in Arbitration and an award is given that then becomes binding. This new form of ADR could be beneficial to parties wanting a timely resolution to their dispute outside of the court. Research shows that the ‘threat’ of having a third party make a binding decision in the arbitration phase can often influence disputants to work harder to reach an agreement in the mediation phase. The process could better allow for parties to reach a conclusive solution that gives weight to the issues each party believes to be the most important in the dispute
At Nicholes Family Lawyers we have lawyers well practiced in mediation, collaborative law and arbitration ready to assist in whichever ADR process best suits each client’s needs.