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"Mediate – don't litigate!!"

As a Family Lawyer, I am always telling my clients to mediate rather than litigate. It may seem strange reading that a lawyer does not want their clients to go to Court.

In Family Law in Australia, the last place you want to end up is a contested hearing before a Family Court or Federal Circuit Court Judge. There are many reasons why Litigation in the Family Court should be avoided and here are a few of them:-

  • It is a massive invasion of your own personal privacy – think about it for a second. After a long marriage or a relationship with the person you once loved, you now have to go into a foreign Court and give detailed evidence about all aspects of your financial relationship and about all aspects of the relationship concerning your children. It is bad enough and stressful enough that your relationship did not work out. Do you then want the added pressure of having to recount all of the bad details (and none of the good) by going to Court?;
  • Litigation in the Family Court is different to other types of Litigation. In other Litigation there is often a set commercial outcome that is sought. In the Family Court, the combatant is your ex-partner. This is not some despised business opponent, but rather the person that you once loved and now you have to fight them in Court. Stay away from Court. It is extremely stressful and invasive;
  • Any legal solution is artificial. The only two people who really know what happened in your relationship are you and your ex-partner. The many good times and the many bad times were no doubt full of many different point of views that you both had from time to time throughout what may have been a long relationship. You may each have your own perception as to what was right and what was wrong during the relationship. If you then go before an independent Court and ask the Court to adjudicate you are therefore expecting that an independent Court (where the Judge was not there to witness nor present during your relationship) can somehow decipher who is right and who is wrong and who is telling the truth. It is a very difficult task and even the most skilled Judges get it wrong from time to time. No system can be flawless when it deals with human emotions and human attachments. Do not expect the system in Australia to be any different;
  • Litigation in the Family Court is extremely expensive. Having a good lawyer advise you and successfully settling at a Mediation can also be expensive if it is done properly. You may spend $15,000.00 or even $100,000.00 on a successful Mediation with a good outcome and no Litigation in Court. However, if you both go to Court and battle for years, you will each spend well in excess of $100,000.00 and probably even well in excess of $200,000.00 each. That is a lot of money (after tax dollars) that can go towards other things that you want to enjoy in life or for your children. Do not be stupid and pig headed – look to mediate at all times and not litigate;
  • Litigation in the Family Court will be lengthy and you can expect delays. It will not be quick and you will not have a resolution of your matter in a short timeframe. From the time you file in Court to the time you get a final Judgment, may be anywhere from 1-3 years. Why add further stress to your life by spending 1-3 years fighting in Court and having valuable precious time (time that is spent with your children or new partner) occupied by the demands of a Litigation system. Relationship breakdown is extremely traumatic to both parties – however, life goes on and the sooner you can move on emotionally and get on with your life the better. Having to constantly front Court and lawyer's offices days, months, weeks and years after the relationship breakdown is a sure recipe to increase stress and anxiety levels; and
  • Litigation outcomes are uncertain. Even if you have the best Family Lawyer in the world and even if you have the best prepared case in the world, there is still no guarantee that you will get the result you want. There is absolutely no certainty in Litigation in Family Law in Australia. The same is true for many countries around the world. We have a discretionary system. That means, that on any given day with the same set of facts, a different Judge can made a different decision based on exercising their own "discretion." There is no exact right or wrong answer. If you know this (and I have just told you it is true), then why would you litigate and spend hundreds of thousands of dollars when there is no certainty?

There are many other disadvantages of Litigation and we touch on those in a series of articles later. However, there is an answer to the doom and gloom of Litigation and that is Mediation in Family Law.

Unlike Litigation, Mediation offers many advantages that cannot be ignored. These advantages include the following:-

  • You have a lot more control over when your matter will be finalised – with good lawyers on both sides, a set of directions (for example disclosing documents and attending to valuations) it can all happen in a timely fashion and with cooperation. The Mediation can be set down to take place within a set period of time. Most Mediations can usually be finalised within 3-9 months after separation;
  • Mediations are expensive if done properly, but are substantially less expensive than Litigation. A good lawyer will still need to prepare you properly for Mediation and to make sure a lot of the groundwork (similar to if you were going to Court) needs to be carried out. This is still a battle. Even though it is a Mediation you still need to prepare as best you can and if you have a good lawyer, they will want to maximise your chances of getting a reasonable deal at Mediation. Things such as disclosure of financial documents from the other party, attending to the valuation of all items of property (if there is a dispute) together with an exchange of offers of settlement are all necessary to ensure that a Mediation can proceed smoothly. However, in just about every case a successful Mediation will end up costing the parties only a small fraction (perhaps 10%-20%) of what they would spend over a three year period if they battled it out in Court;
  • Mediation also allows you and your ex-partner to make the decision and to choose a settlement option. No settlement option is forced down your throat. Neither of you will probably leave the Mediation settlement overly happy, but you will not be overly upset. You will have reached a compromise and walked away with a deal that you can "live with and get on with your life with." That is the most important outcome and Mediation allows you to achieve it in a more efficient and less expensive manner; and
  • Mediation preserves one's dignity and shows respect for the other party. Even though you have separated, there is no need to "hate" the other party (the one you once loved) nor is there a need to be disrespectful. If you have children, then you are both parents of those children. Mediation is a way of showing maturity and respect to the other person and settling a private relationship matter in a discrete fashion achieves this. Why do you want the Court to know about your dispute and why do you want other friends and family to know about the blow by blow descriptions of conflict every week. These matters are discrete and they are private. Having your matter settled during the course of the day in private Mediation rooms with only the mediator and the lawyers present is a lot more comfortable than turning up to Court with hundreds of people waiting outside the Court room to get on.

There are of course some situations where litigation is necessary. It may be, that your ex-partner is "dragging the chain" and needs a push to make them cooperate and start negotiating. In other cases, there may be an urgent need to protect assets or urgent matters concerning the welfare of your children that require urgent Court action.

However, a good Family Lawyer will always have at the forefront of their mind the fact that Litigation in Court should be a last resort and when they advise you to litigate it usually is because of a very good reason or borne out of necessity.

 

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The information on this website, together with the articles, is produced by Brett Hartley and other employees of Brett Hartley Mediations. It provides general information only on relevant topics of interest in relation to Mediations and Family Law current at the time it is produced. No reliance should be placed on such general information as contained on this site and in the information sheets and legal advice should be sought about the particular circumstances of your particular case. Liability limited by a scheme approved under professional standards legislation.

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