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Is mediation always better than litigation?

By January 19, 2022February 23rd, 2024No Comments
is mediation always better than litigation

Last year’s family and federal circuit courts merger has had the explicit goal of steering more families out of the family court system and into dispute resolution services instead. This is because there are so many family law matters that are well suited to mediation and other Alternative Dispute Resolution processes. Diverting those matters would also vastly improve the terrible backlogs experienced in the courts. It’s true there are huge benefits to be had by avoiding the costly and lengthy process of litigation. But let’s not throw the baby out with the bathwater…

[Is mediation always better than litigation?…continued]

Over in the UK, there’s a similar push to increase use of ADR processes like mediation. Politicians there, too, talk about the need to help families avoid court and not make it “too easy” for families to litigate. But writing in the Law Gazette, Rachel Rothwell emphasises how “important it is that people still have a genuine opportunity to go to court and have their matter decided on by a judge. Mediation should never be the only real option.”

And similarly here in Australia, although a cultural shift away from the adversarial process is welcome, there will always still be a need for litigation, in addition to the range of ADR processes. 

Rather than “coax and jostle the bulk of private family law matters out of the court system and into ADR”, Rothwell argues ”the best way to reduce family court backlogs and increase voluntary engagement with mediation is blindingly obvious – bring the lawyers back in.”

Shrewdly funding” legal aid

The UK family court system has seen similar drastic cost-cutting in legal aid funding as has Australia’s court system. But as Rothwell argues,

“What every family lawyer knows is that the earlier they are involved in a case, the better for clients – and for the courts. Solicitors give clients that all important reality check, explaining the hurdles

face, the prospects of success, and the limitations and frustrations of the court process. Family lawyers have no hidden agenda of encouraging clients to litigate so they can stuff their pockets with fees along the way. Solicitors will guide clients towards mediation whenever that is the best option for the client; and where the circumstances are better suited to litigation, the presence of legal representation ensures that the case will take up less court time, and be much less frustrating for the judge.”

She says smart funding of legal aid would ideally be “at the very first stages of a case [when] a solicitor can offer the maximum benefit”.

Our Government does appear to understand this, if recent developments in funding are any indication. South Australia has just seen an injection of funds from the Federal Government specifically intended to make more legal assistance services available to court users. MP Josh Teague announced South Australians would see implementation of a new Family Law Pilot Program this year worth $14.3 million over four years. “South Australia is the only state or territory to receive funding for this important pilot program,” boasted the Minister. We can only hope the largesse extends to other states.

Funding legal assistance

Federal Attorney-General Michaelia Cash has described how the South Australian funding would be spent on a three-part pilot, addressing identified areas of legal need in the system. The pilot will target three specific areas:

The so-called‘Missing Middle’: targeting financially disadvantaged people who are not eligible for legal aid and might not otherwise be eligible for other legal assistance services. This includes people who earn a minimum wage but have dependants or other financial pressures which prevent them from securing private legal services. Part One of the Pilot aims to increase efficiencies and reduce delays caused by self-represented litigants.

Property Mediation matters: increasing the capacity of the sector to provide representation services in Family Law property mediation matters. The aim is to divert clients to quicker and less costly resolution outcomes.

Cultural appropriateness: increasing the availability of culturally safe and appropriate legal advice and representation services for Aboriginal and/or Torres Strait Islander families in Family Court matters.

While mediation and other ADR processes are preferable to litigation in many instances, it’s vital that Australians who need to go to court to resolve their dispute can do so. And the availability of targeted legal assistance, such as in the South Australian pilot, will go a long way towards speeding up court processes and making them more cost-effective for users.

Do you need family law advice? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

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


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