Options for resolving family disputes out of court

Recently Resolutions Institute hosted an event that explored the changing landscape for resolving family disputes out of court. This highlighted the range of options available to suit particular situations and the role for lawyers and other professionals as gatekeepers. It is possible and indeed, there would appear to be a responsibility, to be aware of the various different pathways and to carefully match these to the individual needs of each family that seeks our advice and support. Family Dispute Resolution is such a flexible process and each situation could find a model that has the potential to assist that family to move forward.

Belle Lane is a family law barrister, mediator and arbitrator. She described how most of her work is in the context of court proceedings, and how she generally works with lawyers and their clients, often in multi-party situations. She promotes a facilitative approach, and seeks to empower the parties to participate as fully as possible in the process in conjunction with their legal advisors. The current delays and difficulties in court funding have had a significant impact on her work, with mediation now often outsourced by the court, and fast becoming an accepted option in the court context.

I spoke as an FDRP (Family Dispute Resolution Practitioner) and private mediator, offering family mediation in the pre-litigation context as well as during court proceedings. I am approached by parties seeking to have the advantage of a legally trained FDRP, who understands the court process and can work in the shadow of the law. I am also approached by lawyers and other professionals who are seeking a facilitative and solutions focused approach.

It is always recommended that parties have all the support they need to participate fully in the process. They may access information from legal advisors, social scientists, financial advisors or other experts. A very careful assessment is undertaken to identify any special needs and ensure that these are acknowledged and managed appropriately throughout the process.

Some of my work involves parties who are keen to keep away from lawyers and the court system. It can also involve parties who have ventured part way down the legal path and are keen to retain the ability to make their own decisions, and move away from the legal process. Sometimes they seek to make a short term or interim arrangement while they deal with other matters in a different way, or trial an arrangement to assess whether it achieves their goals. They are always recommended to obtain legal advice as to their rights and entitlements.

Marguerite Picard is the Director of MELCA and spoke of those parties who are adamant that they do not want to end up in the court system, and sign an agreement confirming that they will not instruct those participating in this process to go to court. They participate in a Collaborative Law process where lawyers, social scientists, and financial advisors work together with their clients as equals, to achieve a co-operative and mutually acceptable outcome.

Ed Shackell is Practice Development Specialist-Family Law, for Relationships Australia Victoria. Ed described the wonderful programmes for those who want to participate in a community organization like RAV or one of the Family Relationship Centres. These offer FDR services at a subsidized rate, together with all the other relationship services and supports available at a community organization, such as parenting programmes, counselling, parenting skills courses, and family violence programmes. They have some limited ability to provide legal support during FDR, but also recommend the importance of legal advice as to rights and entitlements.

Everyone assisting families to deal with their disputes should understand the different offerings for resolution, the strengths of each different pathway, and be able to match these with the needs of their clients. An understanding of the level of assessment undertaken particularly around capacity, the information provided, the opportunities for additional supports including legal advice, the policy for support persons, the level of follow up given to parties when they reach agreements-these are some of the factors that would need to be considered to make an accurate and comprehensive referral for FDR.

If you are interested to understand more about the differences between these pathways, please contact me at Creative Family Law Solutions or seek out more information at the following websites:

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