Resolution Pathways

While you and your former partner may be amicable enough to discuss and negotiate an agreement between yourselves, it is not unusual for us to still assist and advise clients in this position. This process can be completed without us ever communicating with your former partner. We are simply your advisors behind the scenes, whose expertise and experience you can draw upon as much or as little as you like. We encourage you to receive preliminary legal advice before getting too far into the negotiations with your former partner, so that you are aware of your rights and entitlements from the get-go. This is often as simple as a one hour consultation with us. If requested, we can then provide you with ad hoc advice as you move forward, to assist you to keep the negotiations on track. Once an agreement is reached, we can assist you to make the agreement legally binding.

When you engage our services on an ongoing basis, we can negotiate on your behalf from start to finish. You will not need to communicate with your former partner or her/his lawyer – we will do this for you. Negotiations can take the form of → emails and letters being exchanged; → phone calls between one of our lawyers and your former partner or her/his lawyer; or → “round-table”, “without prejudice” conferencing, which occurs in person or via videoconference. These strategies are used to communicate the positions of you and your former partner respectively, including your goals and you what you say you are entitled to at law. Offers for settlement are then exchanged, until an agreement can be reached. Should an agreement not be reached, the Negotiation pathway can progress to Mediation or Litigation. Arbitration may be a suitable alternative to Litigation.

Mediation is a well-established form of alternative dispute resolution and is a popular pathway for many to resolve their dispute efficiently. If you and your former partner wish to attend a mediation, you will first jointly select a mediator, who is often a solicitor or barrister by trade, or sometimes a psychologist or social worker. The mediator acts as an impartial third party, assisting discussion and negotiations. Mediation may occur with everyone in the same room, with dialogue facilitated by the mediator. Alternatively, you may engage in a “shuttle mediation”, where you and your former partner are in separate rooms, and the mediator shuttles between the two, communicating the position of each party and any offers made. Our role is to advise you prior to and during the mediation, and advocate on your behalf at the mediation.

Should it be the case that you and your former partner are unable to reach an agreement via discussion and negotiations (whether DIY or lawyer-assisted), the Court is available to you. When you make an application to Court, you put forward your case by filing evidence (e.g. affidavits) and applications which advise the judicial officer (Magistrate, Judge or Registrar) how you wish for he/she to determine your matter. Your former partner will do the same. You then delegate your decision-making power to the judicial officer. If, after receiving advice from us, you are of the view that the judicial officer has made an error of law when deciding your matter, you may appeal the decision. It is often the case that mediation will be required before your matter progresses in the Court process, unless urgent intervention is warranted.

Arbitration is a similar process to Litigation, in that you and your former partner both put forward an application to be determined, supported by evidence (e.g. affidavits), and you ask a third party to make a decision to resolve your dispute. The difference is that you and your former partner jointly select a private Arbitrator to act in the role of “Judge”. The Arbitrator is usually an experienced barrister or retired Judge of a Court with family law jurisdiction. The decision of the Arbitrator is registered in the Court and becomes legally binding, just like the decision of a Judge in the classic Litigation model would be. Arbitration can only be used for financial matters, not parenting matters.

Collaborative practice is a unique form of dispute resolution, the parameters and pace of which are driven by you and your former partner jointly, with the assistance of your lawyers. At the commencement of the process, you and your former partner make a commitment to not proceed to Court. You then engage in multiple face-to-face meetings, with you, your former partner and your respective lawyers present, to collaboratively work through issues in dispute. You may invite financial and/or parenting experts to the meetings to assist you in jointly determining what is best for each of you and your family going forward. The lawyers will not engage in negotiations on your behalf outside of the meetings.