Pathways to Resolution
When a couple decides to separate there are inevitably a number of issues that need to be resolved. Top of the list, and usually most immediate, the children and parenting. This is closely followed by financial concerns.
To resolve these issues there are several financial dispute resolution options
that can be considered. The following examines two financial settlement alternatives; mediation versus using the Family Court.
How Mediation and Court are Different
There are a number of differences between mediation and the Family Court. These differences are at both the micro and macro levels and can have a profound impact on the outcome in regards to both the financial settlement and the parties involved.
A Question of Cost
At Resolutions Australia we charge just $800 per client for full financial mediation. This includes an initial enquiry call, intake, and a full 4 hour mediation session. While we’re at the lower end of cost compared to similar organisations, clients attending mediation with our competitors won’t be paying more than a few thousand dollars.
When choosing a Family Court hearing the costs will easily enter the tens of thousands of dollars. Many people assume that court means paying your lawyer will be the only cost to budget for. This is a myth.
The cost for court can include such things as all your lawyer’s preparation time as well as meetings, emails, letters, and phone calls with your lawyer. You’ll be charged a fee by your lawyer to apply for a court hearing. Your lawyer may seek a barrister to act as your advocate in court. Briefing them and their time on the day are at your expense. As part of a Family Court hearing you may wish to submit a family report or child report. These cost several thousand dollars. A psychologist report? Another several thousand dollars. If you decide to have expert witnesses attend (such as the report writers) they will then charge you for their time on the day, their preparation time, travel and accommodation costs if relevant. Again, many thousands of dollars.
Unfortunately, when it comes to resolving financial matters via the Family Court, all too often there ends up being little in the way of finances to argue over once the bills have been paid.
Who Decides?
At the macro level a fundamental difference when examining court vs mediation settlement is the question of who’s making the decisions.
When taking part in financial mediation the two parties in conflict are in a unique position. The mediation is framed around decision-making that is in the best interests of the children. As such the couple, supported by their family dispute resolution practitioner (family mediator) work collaboratively to identify current and future needs of the children and how these will be reflected and accounted for in terms of the financial settlement. In effect the parties are on the same side working towards an agreement that reflects the child focus of the mediation.
This all means that it is the two parties decision-making together that resolves the issues present. There’s flexibility, resilience, positively framed communication, active listening, and a mutual understanding developed.
The decisions the two parties have been empowered to make together are authentic, sound, and directly related to the intimate knowledge of the children that the parents have.
While the Family Court makes decisions, like family mediation, in the best interests of the child, they make them from a very different context.
By attending Family Court the two parties in conflict are handing over the decision making regarding their children to a Family Court judge. The judge, in turn, makes decisions solely on the basis of the evidence presented in court. The judge only knows the children impacted through evidence presented.
Importantly, judgements handed down are legally enforceable. This means that if either party seeks a change, even if the two parties agree, the conditions of the judgement are still in place. Any changes to these orders must be applied for via the Family Court.
Is Time on Your Side?
At Resolutions Australia we’re immensely proud of the fact that we can schedule financial mediation within a few days. This means that from first enquiry through to the signing of agreement the time frame can be as little as 2-3 days. We usually have mediations undertaken within two weeks of first contact.
We push our timeliness as a real positive for clients because in essence it enables them to get on with establishing their new normal. The agreement is in place, is being enacted, and life is able to move on. No lengthy holding patterns, no endless delays.
The use of the Family Court to decide on a financial settlement is going to be a long one. Anecdotally our staff are aware of financial disputes between split couples that have lasted for years. We know of disputes where parties spend tens of thousands of dollars and endless months arguing and appealing until there is nothing left to argue over and months, and years have passed. We’re aware of cases that become so protracted that the needs of the children are now substantially different from when litigation began that the litigation is no longer relevant.
When seeking resolution via the Family Court there will be a first return hearing, usually within 1-2 months of your lawyer applying to the court. At this hearing a judicial registrar will examine the issues and determine how matters will proceed through the court system. Guidance suggests that a final hearing will occur in 12-18months time.
Sadly the Family Court is burdened with ever-increasing waiting lists. The 1-2 months may end up being 6 and a final hearing may have to be pushed back to a two year wait. Much depends on demand.
On top of this there can be endless delays and appeals. It is not uncommon to wait several years to have financial settlements handed down.
The Emotional Toll
The time frames noted above lend themselves to framing the emotional toll of dispute resolution.
With financial mediation, even if it takes several attempts, the matters are dealt with collaboratively and in a timely manner. This lends itself to supporting the emotional wellbeing of both parties. The collaboration required helps foster a changed relationship between the parents who can now better frame their interactions around the best interests of the children. Communication improves, ground rules are entrenched, and baggage between parties is put to one side so the kids can be best cared for.
Compare this then with utilising the Family Court process. Entering litigation automatically frames the two parties as opposing each other. Court is adversarial, a battle. This can escalate already heightened emotions, can entrench horribly negative feelings about the other party, and can irreparably damage any sort of relationship the parties once had. Couple this with having to adhere to a decision the parties may not agree with and the emotional toll will likely be profound and long lasting. And remember, it is exacerbated by the months and years spent seeking resolution, the ongoing disagreements and broken communication, the changing needs of the children, and the fact the parties are living this day in and day out without any form of respite.
To Conclude
At Resolutions Australia we’ve seen and heard of far too many families who have decided to pursue a Family Court pathway for financial dispute resolution only to end up enduring a damaging, costly procedure that leaves them financially drained, and psychologically scarred.
If, as we do, you’re able to see and understand the depth and breadth of mediation benefits over court then we absolutely encourage you to contact us to discuss your unique situation.
