WHAT IS MEDIATION?
Mediation is a very common form of alternative dispute resolution (ADR) used by people to settle family related issues outside of court.
There are several options of ADR available; including mediation, negotiation, arbitration, family dispute resolution and counselling.
At MKI Legal we are settlement focused and encourage families to make a genuine attempt to engage in ADR instead of rushing off to court.
BENEFITS OF ADR
There are several benefits of resolving your issue outside of court. These include:
- Save time
- Save money
- Maintain relationships
- Reduce stress
DO I HAVE TO ADR OR CAN I GO STRAIGHT TO COURT?
For both property matters and children’s matters, it is a strict requirement by the court that you attempt resolving your dispute outside of court before applying to get the court involved. There are limited reasons where this might not apply, such as situations involving family violence, urgency or child abuse.
The main types of dispute resolution for property matters include negotiation and mediation, with arbitration and counselling also being recognised as dispute resolution avenues.
For children’s matters, a separate type of alternative dispute resolution is a requirement, known as Family Dispute Resolution (FDR).
WHAT CAN I EXPECT TO HAPPEN DURING ADR?
Depending on which method of ADR you choose, there will usually be an impartial third-party meeting with you and the to attempt to help you settle your matter.
In property mediation, you and your ex-partner meet with an impartial third-party mediator and discuss your property matter in detail. The mediator may meet with both of you together or separately, depending on what they deem as most appropriate. The mediator will facilitate discussion and negotiation and attempt to help you come your own agreement about how you want all of your assets to be split.
Negotiation usually takes the form of letters between you and your ex-partner. Either you can prepare formal negotiation letters yourself, or you can ask a family lawyer to help you.
In arbitration, both you and your ex-partner meet with a qualified arbitrator. The arbitrator will hear both sides of the story and at the end of the meeting come to a decision about how your property should be split. This decision will be then become enforceable.
Counselling consists of meeting with a trained counsellor in order to try and reach an agreement with your ex-partner.
Family dispute resolution
FDR is a unique type of mediation which focuses on children. It is essential to attempt FDR before applying to court, unless there are exceptional circumstances which may exempt you, such as urgency, child abuse or family violence.
Family dispute resolution is conducted by trained family dispute resolution practitioners who have vast experience in matters like your own. They usually have qualifications in psychology or law.
The family dispute resolution practitioner will work with you and your ex-partner to hopefully come to a child-focused agreement about how you will successfully co-parent your children.
WHAT HAPPENS IF WE ATTEMPT ADR BUT CANNOT REACH AN AGREEMENT?
If you attempt one of the ADR methods and you cannot reach any type of agreement with your ex-partner, the next step would be to apply to the Family Court of WA.
If you attempt FDR and cannot come to an agreement with your ex-partner, or if they choose not to engage with FDR, the FDR practitioner will issue you with a certificate to confirm this. You will need this certificate to apply to the Family Court about your children’s matters. This certificate is valid for 12 months.
Whether you are applying to the court for property matters, children’s matters or both, our team of highly experienced family lawyers can assist you through this process.
At MKI Legal we are settlement focused and will attempt to make the court process as civil and cost effective as possible.
WHEN SHOULD I GET LEGAL ADVICE?
Before attempting ADR
The trained ADR practitioners will not provide you with any legal advice about your rights and entitlements under law while you are in the sessions with them. Therefore, it is a great idea to get some legal advice before attempting any type of ADR from our highly trained family lawyers.
At this initial stage, our lawyers can help you understand your rights and entitlements to help you make informed negotiations about both parenting matters and your property split.
After attempting ADR
If you have come to an agreement with your ex-partner at ADR, this is a great first step, however the agreement that you have come to is not enforceable, and there is nothing that might stop your ex-partner on reneging on the agreement at a later stage.
Our team of lawyers can help you put your agreement into the proper paperwork to make sure your agreement carries you through into the future. This will provide you and your family with certainty and a sense of finality- helping you move on in life.
If you do not manage to come to an agreement during your ADR of choice, a family lawyer will help you with your next best steps and guide you through each stage of the Family Court process.
SHOULD I BRING A MEDIATION LAWYER TO MY ADR SESSION?
Our family lawyers are highly trained in negotiating and mediation and it might sometimes be appropriate to engage a lawyer to help you through the process.
As mentioned, we can also help with writing negotiation letters for property matters.
WHERE DO I GO FOR ADR SERVICES?
Family law mediation services are offered through many different organisations, both public and with private practitioners.
Find a family dispute resolution practitioner near you here.
Not Sure What To Do Next?Free Discussion
The family law team at MKI Legal can assist you with any questions about your family law matter, separation, splitting your assets or your children. We can help you make the right decision on what to do next.