Dispute Resolution Options

Alternative dispute resolution includes several processes to resolve disputes outside of court. While family dispute resolution (FDR), conciliation, arbitration and mediation are alternative dispute resolution models, each with distinct characteristics and each relating to the principles of empowerment and self-determination of the parties differently.

What is Conciliation?

Conciliation is an advisory process that involves a neutral third party, the conciliator, who helps the disputing parties to reach an agreement. Unlike mediation, the conciliator may actively guide the parties towards a resolution and may propose solutions. Conciliation is like mediation in that both models offer parties a self-determinative process encouraging ‘facilitative interest-based decision making’, however conciliators intervene and advise more. Conciliation is often the alternative dispute resolution mechanism of choice in employment and labour disputes where it is important to maintain ongoing relationships.

The conciliator facilitates communication and empowers the parties by providing an environment in which they can voice their concerns and interests. The conciliator ensures each party feels heard and assists parties to clarify their issues. While the conciliator can suggest options, the parties make the final decision. The parties can choose the solution that best suits their circumstances and needs.

Conciliation differs from FDR in that while the FDR practitioner can provide relevant information, the FDR practitioner does not offer options. The parties have full responsibility for their discussions, decision making, solution-finding and decisions and agreements. Additionally, conciliation is not specifically applicable to family law matters as is FDR.

What is Arbitration?

Arbitration is a determinative process involving a neutral third party, the arbitrator, who listens to both parties and makes a binding decision on a financial dispute. Arbitration is more formal than conciliation or mediation and is like court proceedings in that evidence is presented and rules of procedure are followed. Arbitration is defined under section 10L of the Family Law Act 1975 (Cth).

Arbitration can provide parties with a quicker, less expensive and more empowering option than court proceedings. A shortcoming of arbitration may be that the power balance may be uneven, especially if one party is more experienced in legal matters, wealthier, or there is family violence.

Arbitration limits self-determination because the arbitrator’s decision binds the parties. Parties agree on who is to be appointed as the arbitrator, usually an experienced solicitor especially trained in arbitration. Nevertheless, the parties have limited control over the outcome, which may not meet their interests, needs or preferences. In this way, arbitration does not offer the parties the same autonomy, empowerment or self-determination as FDR.

What is Mediation?

In mediation a neutral mediator facilitates discussion between the parties to assist them to negotiate a mutually acceptable outcome. It is a collaborative, consensual, facilitative process. The mediator’s role is to support the parties to find their own agreement. They do not impose solutions on the parties. In this aspect, mediation is akin to FDR. Mediation can be advisory and transformative as well as facilitative, forming part of a blended process.

Mediation encourages parties to communicate their interests and their needs and to take control of the resolution process. The role of the mediator is to create a supportive space where meaningful dialogue can happen, maintaining a ‘favourable climate’ for parties to communicate, make decisions and negotiate. In this way, mediation potentially empowers participants.

Mediation fosters the principle of self-determination because the parties retain full control over the outcome and are autonomous in their decision-making. The parties’ situations and preferences determine the agreements they make, which can lead to satisfaction with outcomes and a greater chance of the parties sticking to the agreements they make. In this way, mediation is similar to FDR.

How is FDR different?

FDR is specifically intended to meet the complex needs of family-related disputes relating to people who are separating or separated and dealing with divorce. These transitions necessitate agreements for care of the children (parenting) and/or agreements that deal with the division of the parties’ property to ensure that the parties have a clean break. FDR is specifically tailored to the unique dynamics of the many diverse structures of family relationships and may include legal aspects relevant to family law. Indeed, FDR operates under the wing of the Family Law Act 1975 (Cth).

FDR promotes the principles of autonomy, self-determination and empowerment by aiming to purposefully resource, refer and provide tools for effective communication so that parties can address their conflicts and disputes constructively. Ideally, this approach provides practical, realistic outcomes and facilitates healthier future relationships for the parties.

FDR strongly supports self-determination, as parties have full carriage of their decision-making and their dialogue, assisting families to make their own decisions for their futures. The FDR process encourages, and models cooperation, collaboration and consensus-building rather than the adversarial, positional approach taken by the court.

Closing Thoughts

Conciliation, arbitration, FDR and mediation are all alternative dispute resolution models, and they each embody the principles of empowerment and self-determination in their own discrete ways. While conciliation is for those who wish for a more guided resolution, arbitration offers a structured decision-making process where the arbitrator makes the final binding decision, removing autonomy, empowerment and self-determination for the parties. Mediation, like FDR, prioritises a collaborative negotiation and resolution style that is based on empowerment and self-determination. While FDR is most similar to mediation, and uses some mediation techniques, FDR holds and facilitates the complexities, conflict and nuances of family relationships with a focus on empowerment and self-determination first and foremost in the best interests of the children and the future needs and interests of the parties.

Secure Your Future with Expert Legal Guidance from Anumis Legal

Understanding the intricacies of alternative dispute resolution methods is essential to gain resolution to your legal issues.

Anumis Legal is dedicated to the action of empowering and promoting autonomy within each of our clients. We strongly believe in the notion that each client has the ability to make informed decisions that best suits them, and it is our pleasure to facilitate this. We take pride in our proficient ability to guide you through the various alternative dispute resolution processes and assist through every step of the way. Contact Anumis Legal to allow us to provide our expertise in order to explore various dispute resolution options that may be available to you. Our door is always open to you and aiding you towards a more secure, empowered future. For your complimentary consultation call Anumis Legal now on 07 5455 6347 or email admin@anumis.com.au.

Useful Resources

Federal Circuit and Family Court, ‘Family Dispute Resolution’ (Web page) <https://www.fcfcoa.gov.au/fl/family-dispute-resolution>

Family Law Act 1975 (Cth)

Boulle, Laurence and Alexander, Nadja, Mediation: A How to Guide (2015, Lexis Nexis Butterworths)

Australian Government, Attorney-General’s Department, ‘Your Guide to Dispute Resolution’ (Web Page) 18 -19 <https://www.ag.gov.au/sites/default/files/202003/Your%20Guide%20to%20Dispute%20Resolution.pd>

Federal Circuit and Family Court, ‘Arbitration’ < https://www.fcfcoa.gov.au/fl/arbitration >

Brandon, Mieke and Fisher, Linda, Mediating with Families (Lawbook Co, 4^th ed, 2018)