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Mediation and Collaborative Law is a style of dispute resolution where a neutral, independent person (the mediator) helps you and your ex-partner resolve any disagreements. This can be for the division of property, child support, parenting issues, or spousal maintenance. Mediators do not give legal advice, but it is often very helpful if the mediator is legally qualified and understands what type of outcome might result from an application to the Court. They assist the parties to negotiate an agreement that is fair. Aylward Game offers a mediation service, who is our highly experienced consultant solicitor, a qualified mediator.
Mediation is usually a voluntary process, but the Family Court may order that you and your ex-partner participate in mediation, depending on your circumstances. Depending on the level of conflict and personal dynamics of the relationship between you and your ex-partner two Mediators may be necessary.
If the Family Court orders mediation or you and your ex-partner agree, you may be allowed to have your lawyer present in the mediation. The Mediator’s role is to assist communication between you and your ex-partner so that you can have open discussions and negotiate a settlement. If you choose to use mediation outside of the Court process, you may decide that only you, your ex-partner and the Mediator will be part of the Mediation process.
Role of the Dispute Resolution Process
The Mediator’s aim in the dispute resolution process is to facilitate open communication between you and your ex-partner so that you can:
The Mediator’s role is essentially a neutral one. The Mediator will:
Family Dispute Resolution is a form of mediation and is a compulsory step before proceedings about children can be issued at the Court. This process endeavors to help to separate couples reach agreements that are in the best interest of their children. It also encourages separating couples to parent cooperatively. Parenting Plans or agreements are frequently used to assist in this process.
Collaborative Practice – The New Alternative To Litigation Collaborative practice is a popular dispute resolution method developed in the United States in the early 1990s. It has gained popularity in the United States, the United Kingdom, and Canada, and Collaborative practice is now available to assist people in Australia to resolve their disputes.
The Collaborative practice may be suitable for you and your ex-partner if both of you:
The Collaborative practice may not be suitable for you and your ex-partner if:
If this is the case, the lawyers will first have to determine whether Collaborative practice is appropriate. It may be that other professionals are required to be involved to assist and support you through the process and to ensure that your interests are promoted and protected.
The Collaborative approach can enable you and your ex-partner to resolve your issues respectfully so that you can arrive at dignified solutions to your dispute with your ex-partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved.
In the Collaborative practice process, the emphasis is placed on reaching an agreement, rather than having to battle it out in Court’.
In the Collaborative practice, you will be asked to sign a Participation Agreement so that you demonstrate your commitment to resolving your differences with your ex-partner in a respectful manner, with full and frank disclosure of information, and with a minimum of conflict. Open communication will build an environment of trust.
This trust will help you, your ex-partner, and both of your lawyers to work together in finding workable solutions to your dispute.
In Collaborative practice, you and your ex-partner and your lawyers will work together to share information and to arrive at solutions through a series of meetings. Your lawyer will never negotiate deals without your active participation. A major benefit of Collaborative practice is that you and your ex-partner can each contribute to the compromised agreements that you make together, instead of having to settle with a decision imposed upon you by the Court.
At the commencement of the collaborative process, all parties and their lawyers will enter into a Participation Agreement. A key feature of the terms of the Participation Agreement is that the parties agree that they will not litigate their matter in the Family Court.
This means that if either you or your ex-partner decides to commence proceedings in Court and continue with such proceedings during the collaborative process, your collaborative lawyer will not be able to represent you in the collaborative process, they will only be able to refer you to another practitioner to handle your Court case.
How does it all work?
Collaborative practice is different from going to Court. You will be in a room with your lawyer as well as your ex-partner and their lawyer. Both lawyers will be properly trained in the collaborative approach. We all work together towards the common goal of resolving the dispute between you and your ex-partner, with emphasis on retaining your dignity and best interests.
You will have your collaborative lawyer advising and assisting you throughout the negotiations. The playing field will be more even between you and your ex-partner because you and your ex-partner will have your respective lawyers to support you, as well as other professionals if necessary and with your consent.
Collaborative lawyers often work with other professionals, such as accountants, financial planners, valuers, counselors, and mental health professionals, who are trained in the collaborative approach. These people will work together with your collaborative lawyers with your consent with a focus on developing an overall dispute resolution package that will provide both you and your ex-partner with security and direction.
In Collaborative Practice, the lawyers provide advice to their clients and help them assess realistic options. The lawyers then support the clients through the negotiation process to reach an agreement.
Cost of Collaborative practice Mediation compared to Litigation
Because Mediation and the Collaborative process can resolve matters speedily and amicably, the financial and emotional damage normally caused by Litigation can be avoided by you, your family, and your friends.
Mediation and Collaboration can also serve to minimise conflict between you and your partner so that you can make amicable decisions regarding your finances and other personal interests. It will form a basis for your ongoing relationship with each other.
When one party commences Court proceedings they file an Application with the Court setting out the orders they want the Court to make. Both parties then go through a sequence of Court proceedings and conferences and hearings that can take many months or possibly years before they have a final trial where a Judge makes a decision as to what orders will be made.
Through Collaborative practice, separating couples and their lawyers work together, sometimes with other professionals such as relationship therapists, valuers, accountants, and financial planners, to find out what each party wants and how that can be achieved. The Court is not involved in this process and no documents are filed with the Court whilst the negotiations are ongoing. If an agreement is reached, the parties can elect for it to be drafted as a consent order to be lodged at the Court or to be incorporated in a binding financial agreement.
Don’t be frightened to make enquiries and conduct your own research. It is better to be empowered with legal and other knowledge than to worry about problems that may not exist.
Invitation: We encourage you to speak with a qualified attorney to discuss your situation.
The Efficiency of Collaborative practice and Mediation
Dispute resolution via Mediation or Collaborative practice can be arranged in a timely manner and satisfactory outcomes can often be reached relatively quickly. With either method, negotiations usually take place either over a number of sessions, or during one day, depending on the complexity of the dispute or the situation. By using either Mediation or Collaborative practice settlements can usually be reached after 6 to 8 hours of negotiation. The collaborative practice may take longer depending on the complexity of the circumstances and whether other support professionals need to be consulted.
We can advise you during the process, whichever option you choose, and if appropriate we can also represent you in any meetings. When you are engaged in an alternative dispute resolution process it is important to remain focused on achieving a resolution, and to accept that compromise may be necessary.
Aylward Game Solicitors, keeping you ahead of the game.
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