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The Family Law Dispute Resolution Spectrum

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The Family Law Dispute Resolution Spectrum This may be the author’s version of a work that was submitted/accepted for publication in the following source: Cooper, Donna (2007) The Family Law Dispute Resolution Spectrum. Australasian Dispute Resolution Journal, 18(4), pp. 234-244. This file was downloaded from: https://eprints.qut.edu.au/11258/ c Consult author(s) regarding copyright matters This work is covered by copyright. Unless the document is being made available under a Creative Commons Licence, you must assume that re-use is limited to personal use and that permission from the copyright owner must be obtained for all other uses. If the docu- ment is available under a Creative Commons License (or other specified license) then refer to the Licence for details of permitted re-use. It is a condition of access that users recog- nise and abide by the legal requirements associated with these rights. If you believe that this work infringes copyright please provide details by email to [email protected] Notice: Please note that this document may not be the Version of Record (i.e. published version) of the work. Author manuscript versions (as Sub- mitted for peer review or as Accepted for publication after peer review) can be identified by an absence of publisher branding and/or typeset appear- ance. If there is any doubt, please refer to the published source. The family law dispute resolution spectrum Donna Cooper Abstract In recent times the Australian family law dispute resolution system has become increasingly complex and there have been a variety of processes specifically developed for family disputes. This has meant that non-adversarial practice in Australian family law has expanded and that both dispute resolution practitioners and family lawyers require a high level of understanding of the system in order to effectively operate within it. This article assists both groups of practitioners by creating a conceptual framework for the dispute resolution options available to family law clients. It describes and categorises the array of options and then locates them along a linear family law dispute resolution spectrum. Such a conceptual framework can also assist family lawyers to effectively advise and prepare their clients. Introduction Dispute resolution options in Australian family law have now reached such a sophisticated level that they have developed well beyond what may be termed "mainstream" processes such as mediation, conciliation and litigation. There are now a number of processes which have been specifically designed for family law disputes, both inside and outside the court system. Within the court system, the Family Court has developed processes that combine dispute resolution and case management, in addition to less adversarial approaches to parenting disputes. Outside of the court system, there are the conferencing models used by legal aid commissions and a structured negotiation approach called "collaborative law". This article will first categorise the different dispute resolution processes available in Australian family law and then locate them along the linear dispute resolution spectrum. There are a now a wide variety of dispute resolution options available to parties. Family law practitioners require a high level of understanding of these processes so that they can effectively advise their clients and prepare for participation. Categorising the available dispute resolution options There are a number of different ways in which we can categorise family law dispute resolution processes to provide practitioners with an enhanced understanding of the variety of options available to their clients. Processes available inside and outside of court First, and perhaps the most simplistic way in which to categorise family dispute resolution processes, is in terms of the options available outside of the court system and the options available to clients upon entering the court system. There is now a strong emphasis on keeping parties outside of the court system and there are many options available to assist including counselling, negotiation (including collaborative law approaches), mediation, legal aid conferences and arbitration. In parenting disputes, the federal government is encouraging separating couples to access mediation processes in the recently created Family Relationship Centres (FCRs).1 [1] Processes available within the court system include processes that combine case management and dispute resolution such as case assessment conferences, child dispute conferences and conciliation conferences. In addition, the Family Court has developed less adversarial approaches within courtrooms, such as the less adversarial trial process available for certain parenting disputes.2 Facilitative, advisory or determinative processes In addition, one can make a distinction between the available processes in terms of whether they are facilitative, advisory or determinative processes. Facilitative processes are those in which a third party has an independent role and assists the clients to come to an agreement. However, the facilitator does not suggest options or express views about appropriate settlement outcomes; rather, he or she simply manages the communication process to assist parties to come to their own resolution of the dispute. In family law, such processes include some counselling processes and facilitative and transformative mediations.3 [3] Advisory processes are those in which the facilitator is not independent of the content of the dispute. He or she can give information and advice as to the range of likely outcomes if the case proceeds to court, suggest options and actively encourage the participants to reach an agreement within this anticipated range.4 [4] Such a range will often form the "boundaries for resolution" and clients will often settle within this range.5 [5] Advisory processes can include negotiations facilitated by lawyers, including collaborative law processes. They can also include the settlement and evaluative models of mediation, conciliation conferences and legal aid conferences.6 [6] Determinative dispute resolution processes are those in which a third party makes a decision on behalf of the parties. In family law, the determinative options are arbitration and all types of processes which can conclude with a judicial decision made in court. It is interesting to note that the less adversarial trial process available in the Family Court for certain parenting cases is a combination of an advisory and determinative process and could be described as "med-arb" in that the parties are initially assisted to come to their own decision. Only if they cannot achieve this will the judge make a final determination. Represented and unrepresented processes A distinction can also be drawn between represented and unrepresented processes. In some processes, family law clients can choose to be represented by lawyers. These processes include negotiation, where clients instruct lawyers to negotiate on their behalf, and some mediation processes, particularly mediations facilitated by private lawyers or social scientists. Other processes in which clients can choose to be represented are court-ordered conciliation conferences, legal aid conferences and any court processes, including the less adversarial approaches. However, it is clear that in some processes, most commonly mediation, legal representation is not an option in some community settings, particularly in FRCs.7 [7] In other processes, legal representation is clearly not appropriate or desirable, eg therapeutic counselling which may seek to focus on resolving underlying areas of conflict between the parties. Court reportable and non-reportable processes Another difference between family dispute resolution processes is based on whether the outcome will be reported to a family court as opposed to processes which are not reportable. For example, judicial officers in both the Family and Federal Magistrates Courts can order parties to attend upon a family consultant employed by the court and such process will be reportable.8 [8] Since the 2006 amendments to the Family Law Act 1975 (Cth) , the focus of the work of family consultants is on non-privileged work, meaning that anything said to family consultants will be admissible in court (unless the court specifically orders that a family be seen on the basis that the session will be privileged).9 [9] It is important that family lawyers inform clients about to enter into such processes that they are reportable to the court. Voluntary and compulsory processes A distinction can also be made between voluntary and compulsory dispute resolution processes in family law. When the Family Court was first established, parties could be ordered to attend counselling processes and conciliation conferences after filing an application. The focus was on compulsory dispute resolution post-filing. Although both the Family and Federal Magistrates Courts can still make these orders, the focus is now on pre- filing dispute resolution and assisting separating couples to resolve their own disputes without requiring court assistance. Parties in both parenting and financial cases are required to participate in dispute resolution pre-filing unless their case falls within one of the exceptions, such as where there are issues of urgency or family violence.10 [10] In financial cases, the provisions can be satisfied by negotiation between lawyers.11 [11] In parenting disputes, parties have to participate in a dispute resolution process in which there is an independent third party
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