Arbitration

Property issues in Family Law can now be resolved quickly by leading family lawyers acting as Arbitrators following changes to the Family Court rules from April 2016.

The Family Court supports the use of Arbitration to resolve property matters in a timely and cost effective way.

Arbitration is a process  ( other than a judicial process ) in which parties to a dispute present arguments and evidence to an Arbitrator , who makes a determination to resolve the dispute.

Parties can choose their own Arbitrator and cases can be scheduled at a time and place to suit the parties. A hearing can be convened quickly and a decision handed down soon after the hearing.

The process can be adapted to meet the needs of the case.

The award when made can be registered with the court and takes effect as if it were a court order.

Brisbane Mediations supports Arbitration as a further way of unclogging the courts and saving parties the cost, stress and delay of court proceedings.

Arbitration is likely to be particularly attractive as a quicker and less expensive option for resolving modest property pools and more straightforward cases.

Brisbane Mediations has qualified Arbitrators available on our panel and can also access other qualified and experienced Arbitrators if the parties so desire.

Parties should direct any enquiries regarding Arbitration to our able assistants who will be happy to help.

Family Law in Crisis.

According to The Australian of 11 December 2015, independent Senators John Madigan and David Leyonhjelm are among a group of senators who have called for a "root-and-branch review" of the family law system. Senator Madigan has been pushing for a radical overview of the system to make it less adversarial in nature, arguing the current system is causing "inexcusable damage" to children.

Senator Madigan urged the government to "adequately resource the court to deal with things in a more expedient manner and have people in it who are properly trained".

He said "the court needs to be better resourced than what it is and people operating in the area of family law need to be trained in this area".

Senator Madigan also wanted to see the court operate in a way that brought families together , rather than "blew them apart".

Senator Leyonhjelm said: "You can't expect a court system to operate for the benefit of the public if they have to wait extended periods of time because there aren't enough judges. That's a no -brainer."

Clearly the court has a resource problem.However good steps in reducing the current pressure would be to refer more matters to mediation, particularly those with modest pools and to introduce compulsory mediation of property matters before parties are able to initiate court proceedings.

It will be interesting to see how far the independent senators get with their call for "root-and -branch review".

Travel to Mediation

It was pleasant yesterday to travel to Ipwich to conduct a mediation involving both property and children's issues.

Parties often don't realise that mediators are usually prepared to travel to suit the convenience of the parties.

In this case both parties lived in the vicinity of Ipswich and both legal representatives were based in Ipswich.

Sometimes depending on distance, some charge may be made for travelling time, however with the mediation being convened as close by as Ipswich, it was easy to make a decision to waive any charge for travelling time and mileage.

While it is always good to have the facilities on offer at our usual rooms on Wickham Terrace, in this instance a decision was made for the mediation to proceed at the chambers of local barristers and the rooms and facilities more than sufficed.

The gesture of chambers to provide lunch was greatly appreciated and the sandwiches both plentiful and well received by the parties, their representatives and of course the mediator.

At Brisbane Mediations we often travel to undertake mediation and are always happy to consider a request to do so.

Not only did the day provide a welcome change to our normal routine but I am pleased to report that with the help of both representatives, the parties were able to reach agreement on all issues.

As they say, in the usual parlance, a successful day was had by all.

The father's solicitor will now prepare consent orders which the representatives will jointly submit to the court for approval.

With the Court's approval almost guaranteed due to the reasonableness of the agreement reached, the parties are a long way in front in terms of legal costs and avoiding the long delays that are an everyday feature of a court system that is quite simply breaking under the load.

I look forward to the next opportunity to travel into the regions to assist parties to resolve their dispute.

Why not invite us out to your place for your next mediation.

Cuts to Family Court-Impact on court delays.

In the lead up to the federal election, the coalition announced a planned $30m cut to Family Court processes in its final costings. According to the Financial Review of Friday 20 September 2013, the president of the Law council of Australia will write to the new Attorney-General George Brandis, QC to ask where the proposed cuts to the Family Court will come from. Rick O'Brien,chair of the Family Law Section of the Law Council was quoted as saying that the Family Court and the Federal Circuit court "are both already under-resourced" and it was taking too long for casesto go through the system. Mr O'Brien noted that the Federal Circuit Court,Family Court and Western Australian Family Court are struggling with workloads and delays are at "an unacceptable level". As Mediators, on a daily basis we face concerns of parties about delays in the court system and the impact of these delays on their lives. Court delays are a major reason why parties try to avoid the court system and look for a resolution which enables them to move forward with their lives.This will increasingly be the case if the already stretched courts are asked to deal with further pressure on their resources. the only clue given by the coalition to it's proposals was an indication that it proposed to "streamline Family Court processes". At this stage it is not clear what is intended by this inclusion in the coalition's costings.

Mediation and Court delays

One reason for using mediation is that unlike the court process, a mediation can be convened at any time to suit the parties.

Trials have become a very expensive process with courts under resourced and serious court delays resulting.These days it is not unusual for disputing parties to have to wait for a year or more to get a hearing.Particularly in the relationship area this is most unsatisfactory with parties having to put their lives on hold while they await a hearing.Sometimes it is necessary for properties to be revalued and other circumstances can change significantly.

Delays in getting a hearing are only part of the problem however as even after a final hearing parties often have to wait long periods for a decision.Courts do their best to avoid these delays, but they inevitably occur.As recently as last weekend there was a report in the Brisbane Courier Mail detailing delays in the Family Court and Federal Magistrates Court and the inpact they were having.

Mediation offers parties in dispute the opportunity to resolve their dispute without these delays.Mediation can be convened with little notice and scheduled quickly.Consequently because of the high success rate of mediation, parties often resolve their disputes without the delays associated with court proceedings.Apart from being organised quickly, there is no waiting for an outcome, as if parties are able to reach a resolution, then they usually leave with an agreement which can be formalised in a court order.

Parties can access a mediation through their lawyer or approach a mediation agency directly.Some mediation agencies have waiting lists, however private mediation services can usually schedule mediations at short notice and of course with these services lawyers are usually welcome to attend so the parties have ready access to their legal advice in the course of the mediation.At Brisbane Mediations, we have over 30 mediators on our panel so there are no delays in scheduling mediations and lawyers are always welcome.In fact we generally find that lawyers are very helpful in achieving an outcome at the mediation.

The ability to convene mediations at short notice is one of the distinct advantages of mediation.Furthermore mediation has the flexibility of not having to be convened within court hours and the saving to the parties both in terms of costs and emotional distress is enormous.

Court delays and mediation

A recent article in the legal affairs section of the Australian highlights the advantage of mediation in offering a speedy and readily available solution to people in conflict.


The article in The Australian on Friday 28 October 2011 outlined concern over delayed judgments in the Brisbane registry of the Federal Magistrates Court coinciding with a surge in the court's workload.


Although the Federal Magistrates Court deals with the majority of family law matters a shortage of magistrates is said to have led to extensive delays in the Bribane registry.


President of the Queensland Family Law Practitioners Association Deborah Awyzio is quoted as saying that the biggest problem associated with the delays in Brisbane was that parties awaiting judgment "essentially have to put their lives on hold".


One of the advantages of mediation is that it can be undertaken at any time and you don't have to wait for a court to be available to hear your dispute.


Whereas court proceedings are often drawn out which increases the costs, mediation can be organised and implemented quickly and usually completed in a day.If people reach agreement they can avoid the long delays in court judgments being delivered.


At mediation a person is able to present his or her case and hear the other person's version at an early stage of the matter and the process allows for commercial or lateral solutions which may not otherwise be available.


The whole process can be organised and "done and dusted" quickly, enabling the parties to avoid the delay and uncertainty and above all the cost of court proceedings.


Mike Emerson
Co-Principal Brisbane Mediations