Options for resolving disputes in a separation

When couples separate, they often disagree over matters of money and property. But this doesn’t mean they are necessarily headed for Court. There are many options for settling disputes, which can be quicker, less expensive and less stressful. What is important, is a willingness to work with the other party on finding a solution you can both live with.  The following are common ways that couples can settle their issues:

1. Settlement via exchange of letters‍

This is where the lawyers will exchange letters in the form of Calderbank offers (offers through letters) with the view of reaching a settlement.        

Chances of success: less likely to be successful when the parties are not talking and have very different positions.

Costs: This is one of the least expensive ways of resolving matters as the only costs involved are the lawyers’ fees and the eventual agreement that will be drafted once an agreement is reached.

Timeframe: The issue is there is no timeframe for this. If the parties are not engaging, this can draw out for months and in some cases, years.

2. Round Table Meeting‍

This is a meeting between with both parties and their lawyers. There are no outside parties involved in a roundtable meeting. Both parties have to agree to a round table meeting.        

Chances of success: Roundtable meetings are unlikely to be successful if there is high conflict between the parties.        

Costs: The costs of a Roundtable meeting are the lawyer’s costs for the day.

Timeframe: A Roundtable meeting can be set up at short notice, depending on the availability of the lawyers and clients.

3. Counsel-led Mediation ‍

This involves both parties, their lawyers and a neutral third party. A Counsel-led mediation is mediated by a lawyer, who is a trained mediator. Both parties have to agree to a mediation        

Chances of success: The result in a mediation will never be a 50/50 division. One party will always get a larger share of the property pool, but this may be an attractive option if you are looking to resolve the matter quickly.

Costs: Mediators may cost up to $10,000 per day and the costs will be shared by the parties.

Timeframe: A mediation can normally be arranged within 4 weeks. However, this is dependent on the availability of the lawyers, the parties and the mediator.

4. Arbitration

This is a “mini” court hearing. A binding decision made by a person with a status and powers of a Judge. Arbitration can take place at a much earlier stage than a Court Hearing and is less expensive.  However, the decision is binding and cannot be appealed.        

Arbitration is used sparingly in Family Law but is now gathering more traction because of the lengthy Court delays.

Chances of success: An outcome will be guaranteed but if you do not agree with the decision, you have no right of appeal.

Costs: Arbitration costs will be roughly $20,000. There will be additional lawyer costs of the same amount.  

Timeframe: This is dependent on the availability of the parties, lawyers and the arbitrator.

5. Judge-led Settlement Conference‍

Court proceedings need to be filed for this to be an option. This is similar to a Counsel-led mediation, however the neutral third party is a judge. Both parties also have to agree to a judge-led settlement conference.        

Chances of success: This is usually a half day event. Complex cases are unlikely to be resolved with one settlement conference. It may take several settlement conferences

Costs: The costs associated with the Judge-led conference are the lawyer’s fees for the day and the costs of preparation for the conference.

Timeframe: The timeframe on this is dependent on the availability of the lawyers, the parties and the courts. It can take a long time for a judge to be available.

6. Determination by a Judge.

This is through a hearing. You will need to have applied to the court for this process.        

Costs: There will be court fees of between $1,000.00 to $2,000.00 per day if the matter goes to Hearing. Legal fees for the hearing are likely to be around $11,000.00 plus GST per day. There are also fees in preparing a bundle of documents for court, preparing for cross-examination and compiling legal submissions. This is the most expensive option.

Timeframe: The average time for a hearing is 13 months. It can take months to secure a hearing date. Only around 1 to 2% of cases proceed to a full Hearing. The majority of cases will be resolved by some form of mediation.

Settlement Agreement

If the matter is resolved outside of court, a section 21A agreement needs to be drafted outlining the terms of the settlement and signed by both parties and their lawyers.