• Tanya Lavan

Process options in Family Law

Direct Negotiation

Arguably the cheapest and less adversarial way to achieve a settlement if there are no barriers to communication. Legal advice is recommended as to your rights, entitlements and settlement options. You can then negotiate directly with your former partner to achieve an outcome. Once you have an agreed settlement the drafting can be undertaken by a family lawyer. If you are unable to negotiate directly, your legal costs won’t necessarily be significantly more. You may prefer to utilise one of the other process options. There is a risk of litigation if negotiation isn’t successful.


Lawyer / Lawyer negotiation

In the event you can’t achieve an outcome directly with your former partner, then lawyer to lawyer negotiation is a good option. This may result in settlement offers being sent and financial disclosure taking place through lawyers. You should request advice early as to your rights and entitlements and the process. Once a settlement is achieved it can be drafted by a family lawyer. This option can also utilise a mediation service to finalise your matter. It may also result in litigation if unsuccessful.


Mediation

Mediation can either be lawyer inclusive or exclusive, depending upon your circumstances and understanding of your legal rights and entitlements. Mediation involves both parties attending a conference either together, or by way of shuttle. This will either be with a trained mediator or a Barrister that specialises in Family Law. Offers can be made, and advice can be provided, and settlements can be agreed upon and heads of agreement drafted. Mediation with a chosen mediator and lawyers in attendance has in the past had an approximate 80% success rate. It is a quick and easy way to reach a settlement without recourse to litigation and set fee pricing packages can be obtained.


Collaborative Law

The least litigious and adversarial approach, this process option boasts an approximate 95% success rate and avoidance of litigation. You and your former partner will have their own collaboratively trained lawyer and attend a series of meetings to assist you in deciding on your own outcome. You will utilise the assistance of a developmental psychologist or facilitator (especially helpful if there are children) and a financial advisor. Matters are usually resolved within two to three months and for approximately 10% to 30% of the cost of a litigation matter. The resulting cost is in the ballpark of a direct negotiation and can be cheaper than lawyer to lawyer negotiation. In the event it is not an option for direct negotiation then this is the best approach to reduce the legal and emotional expense for your family. You can either opt for an hourly rate or set fee.


Litigation

The most adversarial option that is usually unnecessary. Litigation should only be utilised if all other options are not successful or the other party refuses to negotiate or if there is extreme family violence, or a relocation to New Zealand for example. Costs can exceed $100,000 per party.



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