Is it better to mediate rather than litigate?

In recent times, the Family Court has been criticised for its failure to provide efficient and effective services due to the Government’s lack of funding and failure to legislate to improve its process. The response was to delegate and split the work load with the Federal Circuit Court of Australia which deals with majority of family law disputes in relation to property and parenting disputes. Now with the recent sacking of Western Australian judge Stephen Thackray, the Family Court is under fire again as it drops from having 31 judges in 2010 to now 28. This possibly indicates to the Australian community that the Family Court’s current processes are about to get worse.

The Age journalist, Jenna Price, suggests in her recent article “Steer well clear of Family Court”, that if you want to solve family custody and property disputes, you should avoid litigation and use mediation.

Whilst mediation may be the ideal solution for many disputes, it is not the ideal solution for all disputes. Litigation is still needed in many cases and should not be completely disregarded altogether. For matters that are highly complex and cannot be resolved through mediation or other alternative dispute resolution mechanisms, litigation has its place to serve parties’ needs.

Family matters are often highly complex and involve an imbalance of resources and power between the parties. In such cases mediation may not be the ideal solution. Without the formal structure and processes of litigation, such power imbalances may be used by the stronger party in mediation to manipulate the weaker party into accepting an unfair settlement.

Litigation may be needed to work with mediation in such circumstances :

  • After multiple attempts of mediation by the parties they may still not come to an agreement. In such cases where mediation is unsuccessful the next avenue to resolve the family dispute will be through the courts. So even if parties use mediation, they need to be that the possibility of litigation is still present.
  • Without the threat of litigation looming over the parties’ heads, they may not see the benefits of mediation and not try their best to settle the dispute through this avenue.
  • We often see mediation arising out of court orders. Where the parties have not voluntarily undertaken mediation the court may require them to do so through ‘court appointed mediation.’ Litigation and mediation are not in opposition with one another, but rather work hand in hand.

If you have an intractable family law dispute and want to discuss options to move your matter forward, please contact us at Rowan Skinner and Associates Lawyers. We are Melbourne based LIV accredited family lawyers