The buzz word around the legal community in recent years is Alternative Dispute Resolution (ADR), which is simply an alternative means of resolving a legal dispute rather than using traditional litigation which involves using the court processes and procedures to get results for clients, and which is generally adversarial, lengthy, and costly.
Clients are looking for other, more cost-effective ways to resolve disputes.
The court process follows strict rules and legislation. It’s a “one size fits all” model that really doesn’t fit everyone.
ADR allows you to tailor the solution to fit your needs, issues, and budgets. It’s also a less stressful means of working through a dispute as it empowers the two parties more than litigation allows. ADR is particularly useful in all areas of family law, including property issues, guardianship, custody, access, and support.
The new Family Law Act – which will come into effect in March 2013 – wholly supports use of ADR, and in particular, use of negotiated settlements by means of mediation and collaborative law.
Mediators are specially trained professionals – often, but not always lawyers – with backgrounds in law, accounting, social work, psychology, and other areas.
Your lawyer will recommend a mediator best suited to your needs, and will consider the techniques and approach of the mediator, as well as his or her background and experience. This will largely depend on the issues in dispute.
A mediator will begin by gaining the trust of the parties, identifying issues in dispute, and any common ground.
While remaining absolutely impartial at all times, the mediator must assess the conflict issues and identify any real or perceived unequal bargaining positions which may be impacting on the dispute.
Mediation may also be appropriate for disputes between co-workers, committee members, neighbours, inter-generational issues, estate beneficiaries, and family-held businesses.
Mediated settlements can also preserve important relationships, as the process is less acrimonious than litigation.
Collaborative law is another model for negotiation-based dispute resolution used in family disputes. It’s a holistic approach that involves multiple professionals with expertise in dispute resolution, family breakdown, adult and child psychology, as well as financial matters.
The process starts with a participation agreement that binds all parties, including their lawyers, to making every possible effort to reach a settlement on matrimonial issues without using litigation. If the process fails, the lawyers are obliged to withdraw from acting for the parties.
The process consists of multiple, carefully managed, four-way meetings between lawyers and clients, and concludes with the execution of a separation agreement, if successful. If necessary, parties will engage the services of other third-party professionals to give impartial advice on any deadlock issues.
Choosing ADR, particularly in family law matters, enables the parties to maximize positive dispute outcomes, repair relationships, and adjust to changes.
These are important changes in light of the new Family Law Act coming into force.
This is the first in a three-part series.
The second part will delve into the inner workings of mediation – how it works, and some insight into the mediator’s role and your lawyer’s role.
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