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The Rhythm of Resolution

The Rhythm of Resolution

Six days to go and what an ideal time to focus more on dispute resolution within the amalgamated Court!

Importantly, it remains that if there are family violence and safety concerns, the emphasis upon dispute resolution is of less pertinence. Even in cases where risk is evident, the Court and parties are required to consider measures which can be implemented to facilitate dispute resolution occurring in a safe way, including in separate rooms and electronically.

There is also an emphasis upon parties engaging with private mediation services and external family dispute resolution practitioners (the latter being relevant to parenting mediation) where resourcing allows. Whilst clearly, for this reason, there will continue to be a significant role for private mediators within the family law community, the increase in the resourcing of Registrars within the Court, and particularly the recruitment of many specialist and experienced mediators, should impact the availability of internal assistance and improve wait times.

If a Court is satisfied, having regards to the means and resources of the parties, that it is appropriate for a private facilitator or mediator to be engaged then the matter will be referred accordingly. If the means and resources of the parties are such that they are without the funds to facilitate private mediation, then a Court-based dispute resolution service is available, be it by way of conciliation conference in property matters, a judicial settlement conference, or a family dispute resolution conference run in-house by Judicial Registrars.

All forms of dispute resolution importantly, including mediation, conferences (whether Court-based or private external), are confidential.  No evidence of any documents prepared for these events, or details of offers, representations, concessions made, etc are admissible other than in accordance with some specific exemptions set out in section 131 of the Evidence Act 1995 (Cth). In other words, what happens in dispute resolution, stays in dispute resolution.

The judicial officer or the family dispute resolution practitioner who conducts the Court-based events does need to place on the Court file a Certificate of Dispute Resolution which sets out whether the matter is completely resolved, partially resolved, not resolved, or whether one or more of the parties failed to attend or make a genuine effort to resolve the issues in dispute. The same certificate is required to be completed by an external mediator if private mediation has ensued. It is stating the obvious but the Central Practice Direction provides for parties to be expected to engage in good faith negotiations and make a genuine effort to resolve all issues in dispute and to at least take time to utilise dispute resolution to limit or reduce the issues in dispute and to record any agreement reached in writing.

There is similarly an emphasis upon participating in Arbitration, which is the determination of the dispute by a decision-maker external to the Court (who is normally a Barrister or former Judge), but this process must be consented to by the parties and has certain limitations in relation to appeal rights and the like. The beauty of arbitration though is that it could potentially be something which is available to parties as a matter of urgency and on bespoke terms as opposed to the potential for the Court to require up to 12 months from the date of filing for determination of a matter.

As you would expect from the requirements in relation to pre-action and disclosure, the Court expects parties to place themselves and each other party in the most informed position possible for any dispute resolution event, including by providing sufficient disclosure and obtaining valuations all with a view to enabling such events to be productive and to maximise the prospect of resolution.

Confidential Case Outline is to be provided on a without prejudice basis prior to both an external or internal dispute resolution event.  It won’t be placed on the Court file.  The document is privileged and cannot be used in contested hearings. There are also certain rules in relation to the documentation which is provided to any private mediator or external family dispute resolution practitioner, which is obviously focused on making sure they have all relevant information.

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