The Changing Face of Family Law
The legal system does not serve families well. Division 1 of the Family Law Act is titled “Resolution Out of Court Preferred”.
The new Family Law Act recognises alternate dispute resolution as a valuable tool of first choice and puts a duty on lawyers to advise clients of resources such as mediation, collaborative practise, family law arbitration and parenting coordinators.
- We all have a notion of what mediation is. The mediator cannot give legal advice and sits in the middle of a dispute and cannot make a decision for the parties. It is assisted interest based negotiation.
- Collaborative divorce is a process in which the parties each hire a lawyer trained in mediation and collaborative family law. The parties sign an agreement that they will not go to court and if the process fails they must start over with new lawyers. We can use divorce coaches to help with communication and issues surrounding the children. We can use single experts such as appraisers, actuaries and accountants if needed. We can use financial neutrals to help assemble information and give projections particularly for parties that are not used to dealing with finances. All negotiations are done in the same room and the lawyers work together rather than pulling the clients apart.
- An arbitrator is like a private judge who you choose and who you pay with rules that you choose in a time frame you choose in a private setting.
- A parenting coordinator, now specifically recognised by the Family Law Act, has to have 10 years experience in law and training in mediation and arbitration and parenting coordination. He or she is appointed by the parties after completing their Separation Agreement or by Court Order after a trial. The parenting coordinator makes everyday decisions the parties cannot make for themselves but the parenting coordinator cannot vary the terms of parenting time or support. They are empowered to use a med/arb model where they start in a mediation/education mode and only if agreement cannot be reached shift into an arbitration mode.
These tools will cost 10 percent of what a traditional trial would and can build families rather than tear them down. These tools provide resources to families to deal with mental health issues, addiction and violence that the courts are unequipped to handle.
Fortunately, this firm is able to provide all of these resources as well as the traditional litigation model.