Recently, I was before a Judge in the Sydney Registry of the Federal Circuit, in a family law property matter. The Judge said that he is not setting down property cases for hearing, and there will be at least an 18-24 month wait for hearing. I am also representing a mother in the Magellan List in the Family Court who had a directions hearing in December 2015. There was no contact from the court, until a letter was written in follow up in April 2016, and the court then organised family report interviews for late June 2016. The Magellan list is ‘fast tracked‘. I was speaking with another family lawyer and she said her case was listed before a Brisbane Judge who would come to Sydney (?) to hear her clients matter. The situation is dire and we all are aware of the long delays in the Family Court and Federal Circuit Court. Do family lawyers need to wear multiple hats: be creative, logical, technical, commercial and open to new ways of ‘doing‘ to assist clients resolve their conflicts in a time and cost effective manner?
Conflicts are inevitable, whether they are in business, work, personal life or representing clients in litigation. However, resolving conflict is not accomplished by only ‘one method’, we need a variety of ‘hats’ so that we can advise and assist our clients resolve their conflicts.
I believe its advantageous for family lawyers to be open to, consider and pursue alternative resolution methods, which can be used to possibly reach resolution, in addition to court determination. Its true, keeping the matter on foot for as long as possible will assist lawyers/law firms reach financial targets, however, it is a short term benefit. This path doesn’t factor in the opportunities that arise from clients who refer their family and friends, due to the creative and cost effective conflict resolution strategies provided by lawyers, always on the lookout to resolve, prior to or in the course of court proceedings. Why is mediation a viable and cost effective option, prior to or during court proceedings:
- Mediation provides a win/win type scenario when there is resolution, it is not a win/lose situation, where there is one clear winner and an unhappy loser. Both parties have to move from their positions and give up ‘something‘ and when clients observe this occurring, it provides ‘room‘ for further amicable, open discussion and resolution of the issues in dispute to a situation that both parties can live with.
- Conflict can be mitigated by open communication. Mediation provides a forum for clients to express their frustrations, disappointments, hurt and anger etc which ‘clears the air‘ and this allows ‘space‘ for clients to look forward and not only in the rear view mirror, whilst considering the issues in dispute with a view to resolution.
- A problem has arisen and it its not being avoided; engaging in a discussion of the problem and working to learn the basis of each party’s position at mediation, can then lead to a solution being crafted, which is acceptable to both parties. Discussion can lead to additional solutions, which may come to mind and exploration of the viability of each of the solutions is undertaken as each party is heard.
- Mediation provides an opportunity to have the parties issues identified, with each party placing different significance or weight on each of these issues, which can then be validated and narrowed with clients brain storming their own workable solutions.
- Unresolved conflict festers underneath the surface and as court delays continue, it will bubble to the surface whenever enabled, and will also reappear always at the worst possible moment. Mediation provides a safe environment to resolve conflict time effectively and cost efficiently.
How do you choose a mediator? Is it based on cost, the cheaper the better as its difficult to ‘sell’ to the client? Is your choice of mediator based upon their ability to represent clients in both property and parenting matters, their seniority, their gender, their reputation, their heavy handedness, or it comes down to cost? What makes a mediator value for money, price? How does the mediator build rapport with your clients, do they refocus the clients in attempt to assist the clients resolve? Does the mediator feel comfortable with people venting their emotions? What will it cost the client to commence proceedings, or if commenced, run the matter to final hearing? Are mediation costs considered ‘money well spent’ or a ‘waste’ – your perceptions matter when it comes to advising on mediation and mediators?Have you considered engaging a mediator who represents in property cases with an FDRP in the same mediation, prior to commencement of proceedings, in a concerted effort to resolve the parenting and property conflict? If it doesn’t resolve, the issues will be narrowed and the parties clear on the other sides case!
If you are in need of a successful barrister and mediator, who achieves optimal results, with high client satisfaction, please contact me at (02) 9336 5399 or firstname.lastname@example.org
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