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Family Law

7 reasons to choose staying out of court

By December 3, 2021February 23rd, 2024No Comments
staying out of court

Going through a split and thinking about whether or not you should go to court to resolve your family law matters? When it comes to going to court, there are many steps along the way. It’s likely that there will be a number of appearances needed in court. Each of these steps involves time, money and usually quite a lot of stress. But luckily, in many cases separating couples are able to avoid the strains of going to court by choosing an Alternative Dispute Resolution process to resolve their differences. There are numerous options for Alternative Dispute Resolution of your conflict and staying out of court. These include Family Dispute Resolution, mediation, collaboration and arbitration. Each of these has advantages over going to court to litigate your matter. Here are the main benefits of choosing to stay out of court by utilising a form of dispute resolution.

[Reasons to choose staying out of court…continued]

1. Move on sooner

The long-standing backlogs and delays in the family court system have only become worse with the COVID pandemic. From the date proceedings are started, it’s possible for court cases to continue for at least 12 months, sometimes more, before reaching a final hearing. Even after you have a final hearing, you may have to wait longer to receive the judge’s decision. Then, once a decision has been handed down, it could mean the beginning of a lengthy appeals process.

By contrast, dispute resolution processes are usually much faster, especially when used early in a dispute. If your goal is to move on with your life as soon as possible, not spend months and possibly years fighting an ex in court, then you should seriously consider your dispute resolution options.

2. Save on legal costs

It’s usually much more expensive to go to court, particularly so if proceed all the way to a final hearing. Apart from legal fees there are usually other costs as well, like court filing fees. Not only that but costs can be very unpredictable. With dispute resolution, there are potential costs savings, by eliminating court costs and minimising lawyers’ fees. Even with dispute resolution processes that involve parties privately hiring a mediator or arbitrator, this still tends to be much cheaper than litigation. This is often because the process is usually much faster and more predictable.

3. Protect your mental health

Divorce isn’t a walk in the park from an emotional and psychological perspective. But the toll becomes much more significant when a matter proceeds to court. Rather than be able to proactively resolve your dispute, it places you in a waiting zone where your emotional upheaval and turmoil can stagnate. The uncertainty, the animosity and the financial burden should all be borne in mind if considering litigating.

Another reason to consider dispute resolution is that the entire process is usually less formal and less intimidating. It can be done in a more comfortable environment that doesn’t involve standing before a judge in a courtroom. And rather than have a third party “judge” you, you work with someone (a mediator, collaborative lawyer or arbitrator) who helps you make decisions in a spirit of cooperation instead of fighting.

4. Have more control over the process

When it comes to the process, dispute resolution processes like mediation usually enable you to choose a time and venue that’s convenient to you and your ex. If using arbitration or mediation, you can jointly choose your neutral third party arbitrator or mediator. This means you can choose someone with specialist knowledge of the issues or personalities in your matter, whereas you can’t choose your judge in court.

No settlement is imposed on you when you use particular types of dispute resolution, like mediation or collaboration. Instead you and your ex are both heavily involved in negotiating a resolution and agreement.

5. Be able to co-parent better

Fighting with your ex for years in court makes it tricky to have a positive co-parenting relationship. The adversarial nature of litigation can inflame existing conflicts and create further hostilities. On the other hand, dispute resolution processes emphasise collaboration and cooperation. They work towards fostering a more peaceful and respectful interaction with your ex while you resolve your dispute. This often prevents the negative consequences for children affected by their parents’ protracted, nasty legal fight in the court system.

6. Have more certainty

There is inevitable built-in uncertainty in the court system. Going before a judge means an outcome is difficult to predict, because judges have a great deal of discretion to apply the law. Two different judges might decide the same case quite differently. As such, being able to choose the dispute resolution practitioner who helps you resolve your family law conflict is a big plus.

Participation-driven processes like mediation and collaboration tend to make people more satisfied with their matter’s outcome than when a judgment is imposed by a court. This means outcomes tend to have more finality, compared to court decisions. Courts are more likely to have created a “winner” and a “loser” and therefore deep dissatisfaction on one side, which can lead to an appeal.

7. Keep it more private

The principles of open justice means that courtroom litigation doesn’t afford you much privacy. But when you opt for an Alternative Dispute Resolution process, you can ensure your divorce proceedings are kept private and confidential. This can also help promote truthfulness and candidness in the negotiations.

When it’s better to have your day in court

While litigation should be seen as a last resort, there are inevitably circumstances where it’s best to take your dispute to court. Maybe your ex is being utterly unreasonable. Maybe substance abuse or family violence is a factor. Maybe your ex has a (diagnosed or suspected) personality disorder making dispute resolution too difficult. Maybe you know your ex is likely to be untruthful about financial disclosure. If you’re unsure whether litigation or one of the Alternative Dispute Resolution processes is the answer, please give us a call at Alliance Family Law to discuss your best option.

Remember that you can still attempt most kinds of dispute resolution at any stage of the process even when litigation has started. Collaboration is an exception, as if parties decide to litigate, the collaborative process is effectively over, and the lawyers you engage for collaboration cannot continue on a case proceeding to court.

For help with a family law matter, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law. You may also like to read our article on new ways of resolving co-parenting conflicts.

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