Settling without going to court

I DON’T WANT TO GO TO COURT – WHY SHOULD YOU!

For the last few years of my family law practice (spanning over 25 years) I have been struggling to reconcile my desire to assist my clients resolve their matters with the usual negotiation methods most commonly used by family lawyers.  My legal training requires a mindset that resolution of disputes must be achieved through notions of rights based outcomes i.e. Legal based outcomes –  “What am I entitled to (by law) outcomes.”  The reality is that often how we achieve outcomes is often more important than the outcomes themselves.

A rights based approach just does not deliver what I believe is in the best interests of those involved in family law disputes or for that matter, any dispute.  Don’t get me wrong the world needs court litigators and not all matters are suitable for mediation or collaborative law or can be negotiated, but it is only a small proportion of matters that really require an outcome determined by a judge or arbitrator.

The better way to resolve issues is to promote self-determination through dispute resolution processes, particularly mediation (family dispute resolution) and collaborative processes.

My thoughts about not acting as a litigator, described by one lawyer/mediator as a “peacemaking” lawyer/mediator was cemented after I read how a US mediator/lawyer had made a similar decision some time ago[1].  Dispute resolution methods aren’t just about mediation; collaborative law can be just as helpful with the right collaborative lawyers involved.

So how can I possibly achieve my goal of not acting for clients in contentious court matters but at the same time assisting them to achieve desired outcomes?

Well a little explanation first.  Besides going to court, family lawyers routinely draft and file consent orders and financial agreements about property and children in the Family Courts.  Whilst I am an accredited family law specialist I am also a Nationally Accredited Mediator and registered Family Dispute Resolution Practitioner under the Family Law Act and last but not least a Notary Public.

The outcome is that my personal legal practice does not need to incorporate traditional lawyering methods nor does it require me to routinely appear as an advocate in the courts or otherwise represent my clients in the courts.  Others in my law firm can act for clients who just want to go to court.

Who will engage me then if I won’t go to court?

Well, less than 5% of matters filed in the Family Court system are actually finalised by a Judge’s decision. Those that do make it to trial are routinely resolved by negotiation between the lawyers for the parties on the day of trial.  So the reality is that there is no real need to even commence court proceedings in 95% of cases.  Don’t forget the many thousands of other matters that don’t event make it to court because they are settled by mediation, collaborative law or negotiation.

I find that people think they want to go to court and get “justice” but at the end of the day everyone just wants resolution.

Why don’t I want to be involved in the courts decision making?

Simply the mindset of a litigator (a lawyer that goes to court) and a “peacemaking” mediator/collaborative lawyer are quite different and the paradigm shift to the latter is necessary in my view to become the best mediator, collaborative lawyer and negotiator that I can be.

In The New Lawyer, 4[2] Julie MacFarlane identified the three professional beliefs that are the bedrock of traditional lawyers’ thinking: – a rights-based orientation, a confidence that courts will produce the best justice for clients, and a mind-set that lawyers should be in charge. MacFarlane finds that these beliefs result in a system that is not only inefficient, but also creates a disempowerment of clients in favour of their lawyers:

“A rights-based model of dispute resolution assumes that lawyers acquire some form of ownership—not simply stewardship—of their client’s conflicts as a consequence of their professional expertise. . . . Client goals are reframed where necessary to fit a theory of rights.  This assumption of ownership by lawyers is both practical and emotional. Only certain types of client input, which are deemed to be relevant to building a strong legal argument, are sought.

Experienced lawyers know the value of negotiation and mediation and understand their role when assisting their clients in the mediation process.

I don’t want to tell those involved in family law disputes what they should accept or not accept, I want to help them get to a point where they themselves can make their own decision.  This will be accompanied by my advice in situations when I am not acting as a mediator.

My invitation to you

Why not let me explain the mediation process and the collaborative law process and assess which of those processes might be of the greatest assistance to you.  You really won’t lose anything but some costs, time and effort.  You can always go to court if it becomes necessary.  What I am emploring you to do is not go to court unless and until it is really necessary.

Doesn’t sound like that’s what you want to do? Well consider this.  I once issued an invitation to mediate for a party.  The mediation did not proceed with the inviting party electing to make an application to court.  He thought that would achieve a just outcome for him.  He returned about 4 months later complaining about the court process and the costs he was incurring.  He wanted to try mediation.  The other party accepted and within 3 hours they had a resolution of their parenting arrangements with both being very satisfied with the outcome they themselves created.  More importantly both were thankful that they were no longer in the court system.

It is common sense isn’t it! – I often refer to it as “common sense divorce”.  You should try and resolve family law issues where it is appropriate to do so without court proceedings.  In fact the Family Law Act not only encourages mediation but requires it in most cases regarding children. 

The Exceptions

There are very important exceptions where the following issues may prevent conducting a dispute resolution process – domestic violence, emotional and physical abuse of a parent and or the children, exposure to danger such as use of drugs and/or alcohol or where threats are made. In property matters there may be a need to protect the dissipation of assets or other reasons where applications to court are necessarily made.  Even if it is necessary to go to court don’t forget to enter into mediation when that is appropriate.  The courts will often order mediation before a trial proceeds.

All I can say that I have had many years of experience in a field where most individuals experience the impact of separation only once in their lives.  If you have bothered to read this then there is a chance that you are considering resolution of your family law matter or other conflict without going to court.  It’s what I am offering you – resolution coupled with an opportunity to move on and enjoy the rest of your life and that of your family.

Contact me as I am more than happy to share my enthusiasm and expertise in resolving disputes.

[1] “Successful Law Practice Without Going to Court, Forrest S. Mosten

[2] JULIE MACFARLANE, THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF LAW (2008).

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Section 60I Certificates

As a Family Dispute Resolution Practitioner (FDRP for short) my role is help people resolve arrangements for their children and for property related matters.  Unfortunately, some see my role as the provider of Section 60I Certificates.  First, let me explain what they are in a nutshell.  The certificates are issued by FDRP’s under Section 60I of the Family Law Act and can be issued for the following reasons both before, during and after mediations regarding parenting matters (they don’t apply to property settlement or any other type of mediation):

  • an invited party refuses to attend;
  • the FDRP decided that it was inappropriate for the parties to attend mediation;
  • the parties did attend and made a genuine effort to resolve the matters in dispute;
  • the parties attended but one or both did not make a genuine effort to reach an agreement;
  • the mediation was started but during the mediation the FDRP decided that it was inappropriate to continue.

So what does it mean to issue a certificate for any of the above reasons?  The only purpose of Section 60I Certificates is that proceedings can be commenced in the Family Courts which is why some people have an single purpose motivation when starting a mediation invitation process – they just want a certificate so they can go to court.

Often I receive responses to the effect that one or both parties can’t afford to pay all of the mediators costs and therefore refuse the mediation invitation.  Curiously they often refer to their solicitors acting for them.  It is really a false economy to run off to court without first attempting mediation.

Mediation (family dispute resolution) doesn’t always end in a concluded final agreement.  At times there is an agreement reached that the parties agree to have in place for a short time and agree to return to mediation after that time period.  Sometimes an agreement can’t be reached at all and the parties then have no alternative but to go to court.  Whatever happens at mediation it is not a process that will harm your future relationship with your former spouse or children, it really only has positive outcomes.  If mediation fails you will have a better idea of the concerns and issues being raised by the other party; you will be better placed to agree at some later point.  Just because court proceedings are commenced it doesn’t mean you can’t reach an agreement before a trial.  In fact very few matters are decided by a judge in comparison to those matters actually commenced in court.

Mediation can result in resolution but it is the parents who made the decision, in the best interests of their children, not a judge.  Creating your own agreement is far better than having a judge make decisions for your children based purely upon statutory rules and previous decisions.  Your decisions will be based upon the love you both have for your children.

 

Grandparents Rights Under Family Law Act

Do grandparents have special rights under the Family Law Act?  They do have some priority and are specifically mentioned in the Family Law Act.

We recently acted for grandparents wanting to spend time with their grandchild but who were having difficulties in doing so because of the conflict caused by the breakdown of the relationship between the child’s parents.  In that case our client grandparents had an established relationship with their grandchild prior to the difficulties arising and it was clear that the grandparents were important people in the child’s life.  Ultimately, there was a happy result for the grandparents and the child as we were able to successfully obtain court orders for the grandparents to spend regular time with their grandchild.

In amendments made in 2006 the Family Law Act 1975 recognised the importance of the role that grandparents often play in a grandchild’s life and the right of a grandchild to spend time on a regular basis with grandparents who are significant to their care, welfare and development.  These principles are set out in s.60B(2) of the Family Law Act 1975 and unless it would be contrary to a child’s best interests, a child has the right to regularly spend time and communicate with “other persons significant to their care, welfare and development such as grandparents and other relatives…”.

However, the Court does not always make court orders for grandparents to spend time with grandchildren.  In one reported case the Court refused to make a court order for a paternal grandmother to spend time with a grandchild in circumstances where both of the child’s parents had refused the grandparent to do so.  In that case the Court needed to consider if it was contrary to a child’s best interests if the grandchild was required by court order to spend time with the grandparent in circumstances when both parents had exercised their parental responsibilities in deciding that the child would not spend time with the grandparent.  The Court considered that because the grandchild was of a very young age and did not have any prior relationship with the grandparent and both the child’s parents had made the decision in exercising their parental responsibility for the upbringing of the child by the child not spending time with the grandparent to commence a relationship, that the Court should not interfere with the child’s parents exercising their responsibility as parents of the child.

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Offence – Removing a Child From Australia

Did you know:

It is a Commonwealth offence for a person to take or send a child from Australia:

– contrary to an order limiting or preventing the child’s overseas travel
– where court proceedings for a parenting order are pending, or
– where an appeal against a parenting order is pending.

These offences are punishable by up to three (3) years imprisonment.  Additionally, taking or sending a child from Australia contrary to an order of the court may result in contempt of court.

If you are wanting to relocate to another country then you should obtain the consent of the other parent, regardless of whether there are court orders in place or not.  If there are no orders and the children are taken to a country which is a member of the Hague Convention (The Hague Convention on the Civil Aspects of International Child Abduction) the other parent can apply to the courts in that country (under the convention) for the children to be returned to Australia.

The Role of Mediation

If you can’t reach an agreement on relocation you may need to participate in mediation prior to making application to court.  Don’t hesitate to make an enquiry if you find yourself in that position.

Mediation – What is It and Why Should I Do It?

Mediation including family dispute resolution provides far superior outcomes than Court proceedings.  Costs, privacy, speedy resolution are only some of the reasons why mediation is the resolution method that works.  Going to Court is costly and without doubt one of the most demoralising and stressful events you will encounter. There is an alternative, in fact more than one alternative but in general they all come under the heading of dispute resolution (also known as alternative dispute resolution and if under the Family Law Act 1975 then defined as being family dispute resolution). These methods include negotiation, collaborative law and mediation. This article focuses on mediation.

You can make life easier by engaging in mediation. A mediator is essentially a neutral party who assists you in the negotiation process by meeting with both of you, identifying the issues and then addressing those issues and reaching an agreement. It’s not a process that will take months but often hours, either on the one day or a number of days. The participants need to have patience to watch the process build to an agreeable outcome. I will discuss the process, how the process of mediation works, how outcomes are achieved by the mediator (well not everything a mediator does but an idea of the process), and finally the advantages and disadvantages of the process.

MEDIATION – A SHORT AND SIMPLE DESCRIPTION

Mediators are different to judges.

  • A Judge’s role is to make a decision and impose that decision on the parties, based upon legislation and legal precedent upon whether they like it or not.
  • A mediator does not make decisions but helps the parties solve the problem for themselves.

Many a time participants in mediations I have conducted didn’t think they had any hope of reaching an agreement. One actually said “He will get…… over my dead body.” She didn’t die and they were able to reach an agreement much to her surprise.

I have conducted many hundreds of mediations. For me the big picture is that mediation helps the participants to reach a decision based upon self-determination. That is, both of them have made compromises on their original positions to arrive at a mutually agreeable outcome. Without compromise there will be no outcome. Quite often the willingness to compromise will not be evident at the commencement of the mediation but will eventuate during the process. This happens because there are benefits to be gained by both parties by negotiating and compromising positions. A compromised outcome created by the parties can result in benefits to both that would never have been realised had a judge decided the matter.

Mediation is also about generation of options, usually arising from the parties but at times being suggested by the mediator or the professionals (lawyers) assisting the parties if they are present.

THE MEDIATION PROCESS

Mediation can be conducted in many ways. I have been trained in a facilitative (problem solving) style but as most mediators would agree, the style of the mediator is adapted to meet the circumstances and the needs of the parties but within the bounds of the National Accreditation Standards that Nationally Accredited Mediators must abide by.

At the commencement the mediator will lay down the ground rules, for example that the parties and any other participants must show respect to all involved. The mediator then seeks to have each of the parties tell their story and to point out their concerns. The mediator will eventually put together an agenda (a list) of those issues and concerns that each party has raised and set out discussing each point with a view to reaching agreement.

Sometimes an agreement cannot be reached, no matter how experienced the mediator is. However, it is rare that there is not at least some agreement reached on some of the issues. Mediation can narrow the issues which need to be litigated therefore saving costs. At the end of the day the Courts are there for people who are unable to agree for whatever reason; everyone is entitled to their day in Court. Of course that doesn’t mean a court decision is one that will result in the outcome the parties want or even envisaged. Sometimes a court outcome is seen by both parties as a bad outcome, and almost always devastating for one party.

A successful mediation results in an agreement in writing, signed by both parties which is usually required to be documented by courts or by way of a binding agreement. In family law an outcome at mediation by way of agreement cannot be final and binding, it must be later approved by a court or documented by way of a financial agreement. In children’s issues a mediator can help the parties draft a parenting plan, which although not a court order, is a document which can be later produced to the Family Courts as evidence of the agreement between the parents. You should always make sure that you are content with the agreement reached at the conclusion of a mediation. If you are unsure you should ask to have time to think about it.

IS THERE A DOWNSIDE TO MEDIATION?

Well, in my view, no. There are positives but few, if any, negatives. When mediation works it results in a quick, and comparatively (to litigation) cheap outcome. The parties can move on knowing that they have resolved the issues without having to worry about the future outcomes of litigation. In fact, a great deal of relief can be observed on the faces of parties in a mediation. Not because they had a good outcome but because the distress and uncertainty of the conflict is finally over. To me, that’s what I offer, an end to the conflict that quite often has completely consumed the parties up until the moment of settlement. Not to mention that the parties have literally saved themselves anywhere from $20,000 to $100,000, or more, in legal costs each!

Mediation creates lasting solutions because the parties have created and agreed to the outcome and this helps heal the rifts between the parties. A decision imposed by a court or through arbitration is less likely to be adhered to and certainly does create communication between the parties in the future.

Of course there are negatives to a failed mediation. You have lost time and money and sometimes the weaknesses and strengths of each party’s arguments are more exposed. Having said that, it would not be sensible to bypass mediation and proceed to a court based determination which is going to continue the dispute, create more problems for the future, and of course cost many thousands of dollars. Someone generally “loses” in court and in mediation their can only be “win – win” outcomes.

WHY MEDIATORS MEDIATE?

Mediators mediate because they know it works. They know it is a rewarding and worthwhile pursuit. Mediators are peace makers and have a sincere desire to help others reach their own peace.

I am passionate about the virtues of mediation and I hope I have encouraged you, the reader, to at least give it a go. You really have nothing to lose, but much to gain.  Read more at Mediate Resolve.

Getting “What’s fair”

Divorce in the Family Courts can lead to uncertain and unpredictable outcomes. A recent case of Telfer [2016] FCWA 2 (4 January 2016) in the Family Court of Western Australia demonstrates how outcomes in property settlements can be just that. Read more

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Words of Caution – Changing the Family Law Act

There has been a great deal of media attention recently (May 2016), attacking the ability of the Family Courts and its Judges to understand and appropriately deal with family violence. Read more

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Family Courts in Crisis in Queensland

The Family Courts are reported to be at a crisis point in Queensland because of a shortage of Judges. The Family Law Act/Courts recently celebrated 40 years of operation.  At lot has changed in 40 years and whilst there have been significant amendments during those 40 years, there remains much work to be done.  Not enough Judges is just one issue.

Why are so many matters before the Courts when clearly less than 5% ever get to stage where a trial and judgment is needed.  If more emphasis were placed on ensuring that all avenues of dispute resolution have been explored before matters are allowed to enter the court system, perhaps the workload of the Judges could be reduced.

There are many other reasons why our family courts are not coping which would be best addressed by a comprehensive overhaul of the family law system in Australia.

The President of the Queensland Law Society recently identified the shortage of Judges as being at crisis point in a Courier Mail Article.