Please enable JavaScript.
Coggle requires JavaScript to display documents.
Dispute Resolution Systems - Coggle Diagram
Dispute Resolution Systems
Family Relationship Centres
Family Relationships Online
https://www.familyrelationships.gov.au/
Family Relationship Advice line
https://www.familyrelationships.gov.au/talk-someone/advice-line
1800 050 321
may be appropriate where
a party has separated and wants to access information, counselling or FDR
adults and/or children are needing help and support with separation
Family Dispute Resolution
Introduced in 2006, provides an accreditation scheme for family mediators to issue s 60I certs in parenting cases, evidencing that couples have been to FDR.
Can be defined as a process where an independent third party, the FDRP, facilitates discussion between the parties and helps them resolve, "some or all of their disputes with each other".
Can be facilitative or advisory
Facilitative
mediator is independent
does not suggest options for settlement
does not provide views about appropriate settlement outcomes
Steps
Pre-mediation
parties are interviewed to determine whether mediation is appropriate
the background to the dispute is explored, parties asked questions to evaluate whether they will be able to "negotiate freely"
FDRP's opening statement
FDRP will introduce the session and provide information, explain the process, and the roles of attendees
Parties' Opening Statements
Parties explain what they are hoping to discuss during the session and issues they are seeking to resolve
Setting the Agenda
FDRP creates list of common issues, the "Agenda". This is the structure of the session
Exploration
FDRP facilitates discussion between parties on each agenda item.
The mediator will use skills such as questioning, reflective listening and reframing so parties can better understand each others perspectives
Option Generation
With enough information the parties can be encouraged to think about potential options for resolution
Private Meetings
Throughout the process the FDRP may have private meetings with the parties to check in with the about how they are finding the process and to assist in considering options or proposals
Negotiations
Parties can now form proposals and offer and counter offer
Resolution
If the parties reach some or all agreement on the issues, this may recorded in writing or drafted into a more formal document, such as a parenting plan or consent order
Issuing of s 60I certificate
Upon conclusion the FDRP can issue a s 60I certificate
Advisory
mediator is not independent
May provide views on court orders that may be made if case goes to court
May provide a range of outcomes within which the court may resolve the case. This is known as the "boundaries of resolution" and is used to encourage parties to negotiate and settle within the range.
Steps
Solicitors state positions
Clarify positions
Mediator reviews supporting evidence
Mediator gives range of outcomes
Negotiation
Agreement
May be appropriate where
parents are assessed as appropriate in intake session conducted by FDRP
participants are able to negotiate with assistance and are committed to working towards settlement
participants are prepared to be honest and truthful and make full disclosure of all relevant information
both parties are able to freely negotiate during the process and are not prevented from doing so by an overwhelming power imbalance or are able to access support such as the legally assisted FDR model to assist with power imbalance
Negotiation
Most common form of dispute resolution
Models of negotiation
distributive
parties negotiate from positions
Integrative
interest-based negotiations and "logrolling" (trade offs or concessions)
Logrolling involves trading off proposals. Eg, if you agree to take care of driving for change overs, I will agree to you dropping off children later in the day
More sophisticated negotiation are "round table conferencing" and a process termed"collaborative law"
Round Table Conference
Parties and lawyers meet, generally at a lawyers'' office, or by vc, to engage in settlement discussion.
Initial meetings may be used to determine the issues in dispute, or those which parties agree upon
Parties will need to work towards agreeing on value of property and what information needs to be collected to finalise settlement
Appropriate where
it will assist parties and their lawyers to come together to have discussions to clarify issues in dispute and the info needs to be gathered and exchanged
an in-person meeting will assist to progress negotiations
parties feel comfortable being in the same room with each other when supported by their lawyers
Collaborative law and collaborative divorce
a more complex, structural negotiation process involving lawyers and clients which has four defining features
The parties sign a formal agreement to commit to the collaborative law process, which includes undertakings not to pursue litigation
Parties and their lawyers attend a series of "four way" face-to-face meetings, during which negotiations take place
Interest-based negotiations are used to focus on the parties' underlying needs and interests, in contrast to their legal positions
The parties agree not to threaten or commence court proceedings during the negotiation process and that, if one party seeks to litigate, the lawyers representing the parties must cease to act (termed "the disqualification provision")
May be appropriate where
parties are motivated to work together with the assistance of their lawyers, and other professionals if needed, to resolve the dispute
parties are committed to negotiating a settlement outcome and have the financial resources to afford the process
parties have substantial assets or complex issues relating to their children and it will assist to involve accountants, financial advisors and/or mental health professionals in the meeting
Counselling
Defined in the Family Law Act
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s10b.html
may be appropriate where
a client has recently separated and wished to re-establish the relationship or is having difficulty coming to terms with the separation
a client is involved in a high-conflict dispute, children are involved, and or he or she needs help to build a co-operative co-parenting relationship
adults and/or children help with adjusting and assistance in working out how their family can more effectively function post-separation
Bespoke FDR processes
Legally Assisted Dispute Resolution (LADR)
LADR and Legal Aid
provided clients are eligible, those who apply for legal aid will usually be referred to FDR
legal aid FDR may utilise a facilitative model from the outset
I fparties cannot reach agreement, then advisory models may be incorporated
May be appropriate where:
one party is financially and otherwise eligible (see legal aid commission guidelines for QLD)
the case is considered appropriate for FDR
both parties agree to attend
there are not unresolved issues, eg, ongoing child protection investigations, or parties have not yet undertaken appraisals of property or balances of superannuation
LADR and family violence
used to assist in restoring a balance of power in negotiations where there are issues of family violence
by having representation present it may be of particular benefit to victims of FV, helping them remain assertive throughout
trauma informed mediators and lawyers
Culturally appropriate LADR
a model of LADR exists which serves to suit the needs of Aboriginal and Torres Strait Island peoples and their unique cultural traits.
the process is aimed at working with couples to resolve family disputes in a culturally sensitive and empowering way.
May be appropriate where:
clients want to access FDR but want lawyers to represent them
clients want to access FDR and there are power imbalances from family violence, cultural, language or intellectual or physical capacity issues, and being legally represented will provide them with legal advice, support and assistance with negotiations
Child-inclusive FDR
a process which allows a child to be indriectly involved with the FDR mediation
if appropriate, children will be interviewed separately by a child consultant and their perspective obtained
the child consultant, not the child, attends the FDR sessions to provide feedback on the children's perspectives
May be appropriate where:
the family has been assessed as appropriate
the child consultant is qualified and trained to talk to children about their perspectives and feed this back to parents in a sensitive and appropriate manner. This person should be a clinical child psychologist
the children are old enough to express their perspectives
parents can deal with feedback in a child-focused way and are wanting to work towards parenting arrangements that are in the best interests of the children
Child focused FDR
as opposed to child-inclusive FDR, this model does NOT involve the participation of the children, but the FDRP ensures the best interests of the children are at the forefront of the discussion
the FDRP will discuss the parents obligations to promote the best interests of children
the FDRP can encourage parents to tailor parenting arrangements around their schedules, and the child's needs, age, personality and educational and extra commitments
May be appropriate where:
parenting arrangements are being discussed
children are too young to express perspectives
parents do not have access to a child-inclusive model
Parenting coordination
a relatively new process to Australia
parents may consult with a private parenting coordinator to assist with day to day decision making when experiencing high levels of conflict
May be appropriate where:
parents have high ongoing conflict and need regular assistance with conflict resolution; and
parents can afford to pay for the services of a private parenting coordinator
Case appraisal
involves providing an independent third party with all the information relevant to the dispute and having them provide an opinion of the likely outcome should the matter proceed to court
particularly in complex matters, and to determine if cases are strong to file court applications
can provide guidance on how to effectively prepare the case for a hearing, usually via a barrister
May be appropriate where:
client wants an expert opinion on whether to proceed to trial and there are complicated issues
the case is a complex one and the client and lawyer require guidance about what evidence should be gathered before proceeding to trial
Arbitration
a determinative process which is a private alternative to a judicial decision
parties agree to be bound by the decision of the arbitrator in an "agreement to arbitrate"
Court referred arbitration
where parties have commenced court proceedings and both consent to a court order that all or some of the issues are referred to arbitration (s 13F)
property and financial issues for married and de facto people may be referred, but not issues in relation to de facto BFA
Party-initiated arbitration
where parties have not filed any court documents and agree to their matter going to a private arbitrator
property and financial matters only
May be appropriate where:
there are property and financial issues in dispute
the parties want a private, time-efficient and cost-effective process
parties prefer to choose the decision-maker
parties are motivated to seek resolution and will abide by the award
Services to support parenting arrangements
Parenting Orders Programs (POP)
assist parents in adjusting to co-parenting following separation
parents may be ordered to attend by the court, or referred by lawyers, FDRPs or they may attend voluntarily
Educational in nature the programs assist parents to:
focus on needs of children
understand that children benefit from continued meaningful relationship with parents
provide children with support, care and guidance they need as they adapt to the separation
recognise their responsibilities to the children
improve communication
avoid conflict regarding co-parenting
May be appropriate where:
parenting order has been made and parents will benefit from learning strategies to resolve disputes with each other and to help move children between households
parents have reached an agreement and want to work toward minimising conflict and cooperating effectively