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Collaboration, mediation and arbitration – how do they differ?

By November 18, 2019February 23rd, 2024No Comments

As reform of the troubled Australian family law system continues to be controversial, and as yet there appears to be no relief on the horizon for families forced to endure lengthy waits for family law matters to be finalised through the courts, it’s definitely worth considering what your alternative options are for transitioning out of your relationship and moving forward. Essentially, to avoid litigation, couples can take three alternative paths for reaching legally-enforceable solutions to resolve their family law disputes: mediation, arbitration and collaboration. But what exactly is the difference between these three methods? Here, we briefly explain the differences between these three methods.


What is mediation?

Mediation is a common way to resolve family law disputes outside court, and in fact must first be attempted by parents if they wish to start parenting proceedings in the family courts.

It is a process where a third party (a qualified mediator) steers the process of trying to find middle ground and a resolution to disagreements. Both parties are to agree on the mediator and the mediator then acts as an independent intermediary. Meetings between parties and the mediator aim to identify each party’s position, goals and objections, and the mediator will help the parties reach an agreed financial settlement and/or workable parenting arrangements.

Unlike litigation and arbitration, mediation is an autonomous and more empowering process, because the parties have control over the outcome – a successful mediation is where the parties reach an agreement, rather than have an outcome imposed by a third party (like a court, or an arbitrator). The role of the mediator is simply to facilitate discussion and control the process, but it’s the parties who retain the decision-making power over whether to accept a solution.

The problem with mediation is there is the potential for the negotiations to achieve no resolution, which may mean litigation is pursued. In our experience, mediation is best if both parties have had the opportunity to obtain legal advice before the mediation, and that they are going into the mediation well prepared, to maximise the chances of the mediation being successful.

What is arbitration?

Arbitration is a substitute for going to court which works like a private family court hearing. Parties hire lawyers and a professional (a qualified arbitrator with specialised training, frequently a retired family court judge or senior family law barrister) who runs the case. The parties present their arguments and evidence before the arbitrator who then rules on the resolution of the dispute.

Parties retain substantial control over the timing and the degree of formality or informality involved. It’s also possible to arbitrate a single aspect of a case (for example determining the value of a business or asset or establishing issues of fact in dispute) which may be holding up settlement of a case.

The advantage over litigation is that you can arbitrate immediately, without needing to wait for a court hearing.

Arbitration and mediation are both alternatives to traditional court procedures which share a characteristic of having a neutral third party overseeing the procedure. However they differ in that arbitration is a less collaborative process than mediation or collaboration, because the arbitrator steers the process and makes the final decision. By contrast, the other processes depend on parties reaching mutual agreement.

What is a collaborative divorce?

Collaborative law has been around for at least a quarter of a century now and has the explicit aim of assisting people to resolve disputes and reach settlement during separation and divorce in a respectful way and without the threat of the other party taking them to court.

Each party retains their own lawyer and other professionals who may range from financial advisors to mental health professionals and child specialists. The professionals work to show parties where interests and goals are aligned, and work to facilitate child-friendly, mutually acceptable negotiated settlements.

The emphasis in a collaborative approach is on transparency and cooperation rather than conflict (parties agree to stay out of the courts while within the process), and on finding mutually agreeable solutions. Information is shared and issues are discussed openly and honestly. It is fundamentally interest based process, rather than a rights based process.

The aim is to reach an outcome through mutual respect and a “win-win” solution as much as possible, rather than adversarial litigation outcomes which typically result in a “winner” and a “loser”.  It’s a much more efficient process and involves the smarter use of resources with everyone’s energy focused on finding truly workable solutions for the family as a whole.

Importantly, if you fail to reach agreement and need to proceed to litigation, the lawyer representing you in the collaborative negotiations is prevented from then representing you in any ensuing litigation as well. As lawyers therefore, we are intrinsically motivated to help you reach agreement via collaboration.

Alliance Legal Services has a special interest in collaborative family law. We have collaboratively trained lawyers who can discuss with you whether the process is suitable for your separation. Our principal Cristina says: “Often matters that you would expect are unsuitable for collaboration are in fact ideal for the process:. If there is no trust left between spouses, how much better would you feel if you were able to agree to receive the last 15 years of bank statements, not the last 2 or 3 as foreseen in formal Family Law Rules?”

If you would like to discuss whether an alternative dispute resolution process such as a collaboration might be suitable for you in resolving your family law dispute, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

All of these alternative dispute resolution processes are faster, cheaper, less stressful, and provide more control over the final outcome – as such, you should definitely consider whether they may be more suitable for you than going to court.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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