Alternate Dispute Resolution
At Chomley Family Law we encourage our clients to explore options to resolve their matter through the collaborative practice, mediation or arbitration. We believe the way your matter progresses is dependent upon the solicitor you see at the start.
Collaborative Law is relatively new process in Australia and it is a process where couples work together with a collaboratively trained lawyer to reach a resolution of their matter. Collaborative matters resolve issues without having to use the Court Resources.
The parties sign a Collaborative Participation Agreement which specifies that the parties will not threaten the use of Court and in the even an agreement cannot be reached the parties cannot use their solicitor moving forward (this ensures everyone is on the same page).
Collaborative matters is interest based negation. The parties and their solicitors diagnose the issues, gather the information, look at solutions, resolve the issues (to figure what solution works best for the parties), and document the agreement.
We will sometimes recommended a third party professional be included in the collaborative meetings. The third party neutral may be a psychologist, accountant, financial planner or valuer. Having a third party join in the process is at the sole discretion of the parties.
Micaela is extremely passionate about collaborative law. Micaela was the first collaborative lawyer registered on the Sunshine Coast with Queensland Collaborative Law. The collaborative process which she thoroughly enjoys as it process which reduces conflict, protects children, clients maintain control over their matters and aims to preserve long term relationships.
Collaborative Law will work for you and your family if:
1) You want your matter resolved with dignity, respect and not to leave it up to a third party (namely a judge) to make a decision on your life and your children’s life when they have no knowledge of your family and you are just another matter in an over worked court.
2) You are open and honest about all assets, liabilities and superannuation.
3) Both parties make a decision that it is in the best interest of the children to work together so there is no long term damage to the children.
4) You want to diagnose the problems and find a working solution to your goals by working with psychologists, accountants, financial planners and other professionals to find a solution which best works for your family.
Collaborative law will not work for you if:
1) You have a win at all cost mentality.
2) You wish to hide assets and not provide full and frank disclosure of the asset pool.
3) There is domestic violence within the relationship.
Micaela has seen first-hand the benefits of the collaborative process as it is creating more healthy and holistic approach to separation which minimises the emotional, financial cost and hardship of separation. Most importantly it protects the psychological harm that can be done to the children.
Arbitration in an alternate dispute resolution process. The parties and their lawyers present the arguments to a third party neutral (the arbitrator) to make a determination on the issues that need solving.
The parties need to enter into an agreement to say that they consent to arbitration and once a decision is made it is registered with the Court.
Arbitration can really be described like the private system in the hospital industry. If you had an illness and needed to see a specialists tomorrow would you wait to see a public doctor (and potentially go on a waiting system for up to 2 years) or would you use a private doctor in a private system you could get in to see tomorrow.
Arbitration has been around for quite some time however it is a recent trend in family law which is developing due to the Court waiting times. At present you could be waiting up to two years for a trial date and then potentially another 18 months for judgement. However with Arbitration your matter can be resolved a lot sooner than having to engage in the lengthy court system.
There is a catch and that is Arbitration can only do property matters and not issues relating to children.
The Arbitration process advantages are:
1) Control the process.
2) Provides earlier certainty as there are faster results which minuses the emotional stress and the uncertainty of the unknown.
3) Flexibility – You chose how formal you want the arbitration to be whether you require the arbitrator to hear evidence and the your former spouse to be crossed examined.
5) Binding results.
6) Costs effective and more efficient.
The disadvantages of arbitration are:
1) The parties are leaving the decision to be made up to a third party individual.
2) The right to appeal if you are not satisfied with the decision is limited.
3) Costs depending on the way you chose to follow the process and if you require parties to be crossed examined etc.
Mediation is where parties attend an organised conference with a mediator and their solicitor in order to attempt to help parties look at the disputes in issue, develop options and reach a resolution to their matters. The Court will normally make parties attend mediation prior to a matter being set down for trial in order to attempt to have the parties resolve their differences.
Parties are required to provide full and frank disclosure prior to attending mediation in order to attempt to resolve their matters.
In order to commence proceedings in relation to children parties will generally need to have attended mediation and obtained a section 60I certificate which will need to be filed with the Initiating Application. There are certain circumstances which do not require a section 60I certificate which may include domestic violence, urgent applications etc.
The advantages of mediation are:
1) You take ownership of your outcome and a decision is not left to a third party (judge) who does not know you or your family.
2) You are not forced to wait for a trial date and then a judge to provide you with a decision which can take up to 18 months after a trial.
4) Preserving relationships by limiting the impact on the family unit and the damage that can be done to the children.
5) Confidentiality – your matter is not heard in an open court.
The disadvantages of mediation are:
1) You cannot make a party participate in mediation or attempt to resolve a matter.
2) There is no guarantee that you will reach an outcome.
3) Time restraints in order to try and reach a resolution.
At Chomley Family Law we offer the traditional process of family law. We can commence proceedings or respond to initiating applications in relation to property, children and child support to protect your rights.
We can have non-formal round table discussions with your ex-spouse, their solicitor, you and your solicitor.
We can negotiate through correspondence and attempt to achieve a resolution of your matter by exploring various situations for settlement.
On the Sunshine Coast, servicing Birtinya, Maroochydore, Caloundra, Noosa and all surrounds.