Mediation versus litigation in Family Law

When there is a breakdown of a marriage or relationship, people often assume that they have to go to Court, or that Court is the only option to settle their Property or Children’s matters.

 While this can be true in many cases, Court is not the only way to have matters resolved and Court proceedings should only be initiated when all other options to settle are exhausted.

 So, what other options are there?

 You can settle your matter by negotiating with the other person yourself. This is generally the best way to resolve matters as it saves both financial and, perhaps most importantly, emotional costs. There may be some utility in having an agreement recorded in some fashion, including consent orders. This may be particularly important in property matters where there can be stamp duty savings or in order to avoid unforeseen costs and consequences.

Another option is to participate in a mediation with the other person rather than going down the path of litigation. In fact, for children’s matters, the Family Law Act 1975 (Cth) and the Family Law Rules 2004, say you have to make a genuine attempt to resolve disputes by way of dispute resolution via mediation before you initiate Court proceedings (except in certain and prescribed circumstances).

With that in mind, in general terms, here are some of the differences between Mediation and Litigation:-

Mediation

1. Mediation is an informal, non-adversarial and confidential process;

2. Mediation gives you more control and the opportunity to come to your own agreement on your own terms;

3. Mediation can be time efficient and cost effective;

4. Mediation gives you the opportunity to openly and freely communicate; and

5. Mediation encourages resolution, it provides the parties with a platform to make a genuine attempt to resolve any disputes.

Litigation

1. Litigation is a formal Court process and often as the term suggests is litigious;

2. Unless you can come to an agreement, a Judge decides the outcome and makes Orders;

3. Litigation can be time consuming and an expensive process;

4. Litigation has a rigid structure and has strict evidence rules, meaning there is sometimes limited opportunity to express concerns and communicate directly without solicitor involvement; and

5. If you cannot come to an agreement, Litigation forces disputes to be heard, usually in open Court.

Whilst there are differences in these methods, both serve a purpose depending on your individual circumstances, especially because in Family law matters, no two matters are ever the same.

As a guide, much like reaching an agreement by private negotiation, there are significant advantages to a mediated process if that is possible. It is also understood that there are times that parties cannot reach an agreement and the litigated processes are there to protected the rights and press the responsibilities of all parties.

Fortunately, we are equipped to represent you both at mediation or at Court. We also have a Nationally Accredited Mediator and accredited Family Dispute Resolution Practitioner who can chair mediations if you want to make a genuine attempt to try and resolve any disputes.