Understanding ADR: Exploring Mediation, Conciliation, Arbitration and Collaborative Practice
There are various forms of alternative dispute resolution (“ADR”) and you may be required to participate in at least one form prior to filing a Court Application.
Collaborative practice is a new form of dispute resolution in family law. Collaboratively trained lawyers may agree to a roundtable conference where the parties and their lawyers meet to discuss a resolution of their matter. No outcome is guaranteed with a collaborative practice approach to dispute resolution; however, it does provide the parties to the dispute greater opportunity to control the outcome and save on legal costs.
The most used dispute resolution is mediation. Mediation is conducted by an unbiased third-party mediator and is often the most cost-effective way to resolve your dispute. The mediator’s role is to facilitate focused discussions between the parties in an effort to resolve the parties’ dispute.
A conciliation conference is similar to mediation; the most important difference between a conciliation conference and mediation is that a conciliator will offer their guidance on the dispute and may suggest feasible solutions for the parties to consider. Conciliators are not permitted to bind the party’s decision.
It is open for a mediator and a conciliator to conduct the mediation in a joint session, meaning all parties will be in the same room during the mediation, however, most mediations or conciliations take place as a shuttle, where the mediator or conciliator will go between the two parties’ separate rooms.
Mediations and conciliations are confidential. There are limited circumstances where confidentiality may be breached, such as where a party makes a threat to a person or party.
Parties to a parenting dispute must attempt mediation with a family dispute resolution practitioner prior to filing a Court application. Mediation is one part of the required pre-action procedures in property settlements.
Whilst you may have attempted dispute resolution prior to filing a Court application, the Court may order that you engage in dispute resolution again through the Court system, either through a conciliation conference, mediation with a Registrar of the Court or private mediation.
Arbitration is another form of alternate dispute resolution; however, the outcome of an arbitration is binding upon the parties. The arbitrator will make the decision. Parties can agree to participate in arbitration without the need to file a Court application. If you have already filed a Court application and your matter is proceeding to trial, arbitration is a more cost effective and expediate way to resolve your dispute after which you will receive a binding decision.
Need Assistance?
If you need help with separation, divorce, parenting arrangements, mediation or any other family law matters, talk to the experts at Michael Lynch Family Lawyers or Michael Lynch Mediations today. Call our office on: (07) 3221 4300 or email: [email protected]
