Family Law issues such as a breakdown of a relationship, divorce, or dispute concerning parenting or financial arrangements can be stressful and traumatic for the parties involved.

In an attempt to resolve these disputes, many approach the courts. Nonetheless, courts are neither the simplest nor the sole avenue for dispute resolution. There are many stages involved prior to, and during a court process.

This article attempts to briefly explain these various stages and the role of the parties involved in each stage.

STEP 1:  ATTEMPT TO RESOLVE THE MATTER OUT OF COURT

Certain procedures such as applying for a divorce is a relatively straightforward process and often, a lawyer need not be involved. Nonetheless, a divorce does not resolve issues regarding children, property and other financial matters, and parties will need to make separate arrangements.  It is advisable that parties first attempt to settle these matters out of court.

1.1     Why Attempt To Settle Out Of Court?

Taking a matter to court can be a costly, complex and stressful process, and is often fraught with delay. It can also bear negatively on existing relationships and children. Parties have limited control over the process and no control over the outcome. There is no guarantee that a decision will be made in your favour.

On the contrary, attempting to reach an agreement out of court greatly reduces the financial and emotional burden on both parties. It enhances communication and often results in improved relationships, as it involves a relatively informal and non-confrontational process. Parties are free to control and tailor the process and the outcome according to their needs and underlying concerns. This flexibility will provide  parties with the opportunity to design an agreement that genuinely reflects both parties’ interests. Notwithstanding these advantages, attempting to settle out of court is dependent on the willingness of both parties to participate in good faith.

1.2     How To Settle Out Of Court?

Parties can choose to reach an agreement either on their own or with the assistance of a Family Dispute Resolution Service. ¹

1.3     Family Dispute Resolution Service (FDR)

What is FDR?

FDR is a forum for parties to resolve family related disputes with the assistance of a FDR Practitioner. ² An FDR practitioner is an independent, accredited professional who can assist parties to discuss issues, options and reach an agreement in relation to children, separation, property and other financial matters. ³ FDR usually takes the form of mediation with the FDR practitioner acting as a mediator. ⁴

What is Mediation?

Mediation is an informal, voluntary and confidential process in which parties to a dispute attempt to reach an agreement with the assistance of a mediator. Mediation is not a legal process, and a mediator does not provide legal advice. The mediator will help parties identify the nature and cause of the dispute, and to explore options for resolving the dispute. The mediator occupies a facilitative role for the content of discussion during the mediation, and will not determine the outcome of the dispute. It is important to understand that the mediator will not impose a decision, and will remain neutral throughout the process as an independent third party.

Is Communications In An FDR Mediation Session confidential?

Generally, communications to an FDR practitioner in an FDR mediation session are confidential⁵ and cannot be disclosed to anyone, including the Court.⁶ Please note that there are exceptions to this.⁷

Should I Get Legal Advice Before Attending An FDR Mediation Session?

You do not have to get legal advice prior to mediation but it is advisable that you do so, especially before signing any written agreement.

What Happens After I Attend An FDR Session?

The FDR practitioner will issue you with a certificate.⁸ The certificate is valid for 12 months from the date of the FDR Session.⁹

Is FDR Compulsory?

The law requires parties applying to the Family Court to make a genuine effort to resolve the dispute through family dispute resolution and obtain an FDR certificate.¹⁰ There are however exceptions,e.g. if the court is satisfied that there is a risk of child abuse of family violence.¹¹

Do I Gave To Reach An Agreement In FDR?

No, you do not have to reach an agreement if you are unhappy with the outcome.