Family-Law-Dispute-Resolution

Useful tips when participating in lawyer assisted dispute resolution/mediation

Alfonso Layson ||

Co-authored by Chris Gosling

Are you navigating your way through a relationship breakdown? Do you need to work out how to proceed with respect to parenting matters and/or property matters with another party? This can include, but not be limited to:

  • your former partner;
  • a relative of your child/ren; and/or
  • third party/ies that assert to have an interest in your property.

It’s essential for prospective parties to understand that prior to commencing any Court proceedings, they must engage each other in dispute resolution, as per the Federal Circuit and Family Court of Australia (Family Law) Rules (FCFCOA Rules). Each prospective party is required to make a genuine effort to resolve their dispute before starting a case by:

  • Participating in alternative dispute resolution such as family dispute resolution (pursuant to the Family Law Act), negotiation, mediation and/or family counselling;
  • Exchanging a notice of intention to commence proceedings and exploring options for settlement by correspondence by making a genuine offer of settlement; and
  • Complying, as far as possible, with the duty of disclosure pursuant to FCFCOA Rules.

It’s important to note that to participate in mediation you do not need to have legal representation. However, given the formalities surrounding pre-action procedures, it is advisable to receive legal advice prior to committing to attending mediation.

You can discuss your options of a mediator with a lawyer, as they can offer expertise as to mediators’ different styles and requirements. It is also proper practice to nominate different mediators to the other party to choose from or vice versa. Once a mediator and a date are selected, there are some handy tips as to how your lawyer can assist you. To that end, this article discusses the benefit of having a lawyer assisted mediation and how to best prepare for mediation with your lawyer.

Five things to assist you during dispute resolution/mediation

To ensure your parenting and/or property matter commences in the right way, there are at least five things that you and the lawyer you engage on your behalf, can do to assist you when involved in dispute resolution/mediation:

  1. Listen: While you may not agree on what the other party is saying, it’s important to listen to what’s important to them. This way, you can trade off what’s important to the other party for something that’s important for you.
  2. Asking questions: It’s important for you and your lawyer to ask questions to make the other party feel heard. This is to get as much information from them to find out what’s agreed, in issue and/or contentious, so you and your lawyer can trade off and reach some sort of agreement. This can involve asking open-ended questions as opposed to direct/specific questions.
  3. Proposal explanation: Explain the reasons for the proposal you and your lawyer want to put forward and then subsequently give the proposal. It helps directly reference anything the other party mentions that is important to them, and what you concede upon. This will show that you are prepared to negotiate and/or move from your position
  4. Refrain from criticism: It’s important not to criticise the other party’s proposal, so as not to antagonise or belittle them, given the adversarial and emotional nature of Family Law. However, it is best practice for you and your lawyer to carefully ask questions about the other party’s proposal to gauge their perspective.
  5. Individualism: It’s important for your lawyer to refer to the other party by their name to ensure they’re not de-humanising them and creating an impersonal atmosphere. However, it’s good practice for your lawyer to ask the other party if they can refer to them by their first name.

In addition to the five points above, there are a few other things your lawyer can do to assist you in representing you in dispute resolution/mediation:

  • Externalise the problem: This is important to ensure that prospective parties engaged in dispute resolution/mediation are separated from problems. Doing this enables the prospective parties to instead focus on solutions. Explaining disputes with reference to negative qualities of the other party are unhelpful and will elicit negative feelings from the other party towards you and your lawyer.
  • Framing subsequent proposals: Once proposals have been exchanged, the best options in which to raise further proposals are by either modifying your own earlier proposal, or ensuring your lawyer amends the other party’s proposal to make it more amenable to yourself.
  • Put proposals in the alternative: Essentially, this is where your lawyer would put forward two or more proposals – typically this occurs when there are multiple issues to be resolved. This approach makes you look more flexible and accommodating to the other party.
  • Relinquish control: Let the mediator control the process. This allows you and the other party to focus on outcomes, as opposed to confrontation. Mediation avoids lawyers and clients arguing about how to have the conversation and instead permits a focus on substance (not process). Pre-mediation meetings with a mediator allow for the mediator to gauge your thoughts and desired outcomes to enable to facilitate as effective an outcome as possible.

Adopting the above methods and options can hopefully assist you in your preparation for your mediation.

How we can help

If you have questions or would like to discuss lawyer assisted dispute resolution/mediation, please contact Coleman Greig’s Family Law team.

 

This material is provided by Coleman Greig Lawyers as general information only in summary form on legal topics current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

Can i put my home on Airbnb?

Airbnb is a form of short-term rental accommodation. To add your property to Airbnb in NSW, you are required to meet several laws and regulations governing short-term rentals.

When are liquidators required to seek approval to retain legal counsel?

When does a liquidator (or the company he or she is appointed to) need court, creditor, or committee approval to validly retain a solicitor to act in a liquidation matter which is likely to extend for longer than three months?  The answer to this question has only recently been settled.

Proposed changes to building and construction law in NSW

The Building Bill 2022 (the Bill) is the key avenue through which the NSW Government has proposed to reshape the culture of the building and construction industry by eliminating poor performance and improving the quality of building statewide.

Can you dismiss an employee who fails to return to the office?

Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them.

New powers to combat phoenixing in construction

The rise of phoenixing in the building and construction industry in Australia in recent years has proved a significant challenge to regulators. Mismanagement of time or cashflow can quickly propel businesses into insolvency.

The NSW Building Commission’s extraordinary powers

In late 2023, the NSW Government passed the Building Legislation Amendment Bill 2023 (Amendment Bill). The Amendment Bill established the NSW Building Commission and granted it extraordinary powers to enter construction sites, inspect work and take away information and materials.

© 2024 Coleman Greig Lawyers   |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230