Frequently Asked Questions – Family Law Answers
Can we resolve things without going to court?
Family Law Answers #1 – Over 90% of Family Law matters settle before trial. Most families recognize that conflict is expensive, stressful, and not in anybody’s interest–particularly the children’s. There are many ways to settle conflict, but the starting point is to get professional help.
What is ADR?
Family Law Answers #2 – Alternative Dispute Resolution (ADR) is the name given to the methods of dispute resolution other than the traditional court process. They include Negotiations, Mediation, Conciliation, and Arbitration. They are voluntary and generally require the assistance of a certified professional.
What is Mediation?
Family Law Answers #3 – Mediation is the most common form of ADR. The mediator does not make any decisions, but works with the parties to find common ground and reach an agreement. In court, many people feel that they have little control over the process. In mediation, the participants have the greatest control over the outcome.
What is a "Mini" Mediation?
Family Law Answers #4 – “Mini” mediations are single issue, or narrow focus, mediations. They are very effective in property division disputes and in developing parenting plans. They are significantly cheaper than going to court on an interlocutory application and often clear the way for complete settlement.
What is the difference between Mediation and Arbitration?
Family Law Answers #5 – Arbitration is a voluntary process like mediation. However, unlike mediation, the Arbitrator makes final decisions, which bind the parties. These can be registered with the court and have the effect of a court order.
What is Mediation & Arbitration?
Family Law Answers #6 -Mediation/Arbitration is a mixture of both processes. The parties try and resolve their differences through mediation. Any issue remaining unresolved at the end of mediation, are then subject to arbitration. Often, the Arbitrator is the same person as the Mediator. This saves a lot of time and money, as the Mediator is already familiar with the parties and the issues. However, if either party feels the mediator may be biased, by having heard the mediation, the parties can then select a new person to arbitrate.
Are there cases that can't be mediated?
Family Law Answers #7 – Some cases are not appropriate for ADR. These include cases where either party is not genuinely interested in settlement, there is a point of law that requires judicial determination, or there are severe power imbalances. An experienced ADR professional will assess these factors and determine if the case is appropriate for this process.
Does everybody have to do Family Violence Screening?
Family Law Answers #8 – Commencing March 18, 2013, all family files are subject to Family Violence Screening. This is an important step forward in reducing family violence. Family Violence is defined in the Family Law Act, and includes physical, emotional or psychological abuse. The presence of family violence does not preclude ADR. However, special procedures may be required to ensure the safety of the participants.
Who pays the Arbitrator/Mediator?
Family Law Answers #9 – The parties pay for the services of a Mediator or Arbitrator together. The parties also pay for their own lawyers. This is sometimes a deterrent to using ADR. However, the cost of preparation and attendance at arbitration or mediation is significantly less than a hearing in court. There are minimal pre-hearing appearances and you do not end up paying for your lawyer to sit in court waiting for your matter to be called.