Click to find out more

Where possible always choose to mediate

Emmanuel Samios BarristerIf you were in a relationship that has irretrievably broken down, you may have some questions…
How do you settle your affairs and move on with your life?
How do you make parenting arrangements with the best interests of your children in mind?
How do you divide the matrimonial property in a way that is just and equitable, that you can both live with?

The litigation trap
If you can’t negotiate these issues with your former partner, it’s tempting to file a family law application in Court.
If you make the decision to litigate, you will likely begin a process that is extremely costly, stressful, inconvenient and time consuming for both of you.

Flaming conflict
You should also remember that litigation usually adds to the conflict.
Where children are involved, you should consider it your personal duty to reduce conflict if at all possible… to minimise the risk of your adult issues affecting your children.
Another problem is that if you initiate litigation, it can make negotiation with your former partner much harder.
There is a real risk that they will stop thinking about how to solve the issues with you, and focus their attention to beating you in court.
That is a completely different mindset that can escalate the conflict.
Suddenly, they may stop talking to you and demand you only speak to them through their lawyers.

Best time to mediate
I think the best time to mediate is usually before you commence litigation… and for maximum chance of success, I encourage you to attend my mediations without legal representation.
If your matter is already in court, we can still mediate to try to get you out of the court process before you incur even more legal fees.

Keeping control
By filing in court, what you are really doing is taking the decision making power out of your hands and placing it in the hands of a Judge.
You may be lucky and everything goes your way in Court.
However, what often occurs is that the Court will make orders that both parties are unhappy with.
It’s my opinion that the Australian Family Law Judges do an excellent job managing a very heavy work load.
The Australian judiciary is truly outstanding.
But… that said… who is in a better position to understand the needs of your children?
Is it you and your former partner, the people who raised your children from birth… or is it a judicial officer who is working from a court file?
With proper guidance, you and your former partner can make the best decisions for your children.

Privacy
There is also the matter of your privacy… the court is a public place.
Do you really want to air your dirty laundry for the world to see?
Do you want your family, friends, community to know what happened inside your home… inside your bedroom?
Do you want everyone to know your most sensitive financial affairs?
If you keep control, you can also protect your privacy.

Costs
There is also the issue of cost.
In Australia, it is common for legal fees to exceed $20,000 or $30,000 to take a simple matter all the way to a final hearing in court.
Your former partner will likely spend a similar amount of money.
I’ve seen cases where a party has spent over $100,000 on their own legal fees.
Where is the sense in you and your former partner spending so much money on legal fees?
… with no guarantee that you’ll get an outcome you can live with?

Lawyers
I have had the privilege of being briefed by some of the best Family Law solicitors in Australia.
You should find that most Australian solicitors are highly ethical and will do their very best for you…
But to provide you with high quality representation, they rightly need to charge proper fees for their professional time… and these fees will quickly add up.
No matter how hard they try to minimise your legal fees, they may have a hard time doing so where there is excessive conflict.
Let’s see if we can work together to reduce the conflict and minimise your legal fees.

My advice to you is to start the resolution process with mediation.
Don’t tangle yourself in litigation.
Don’t escalate the conflict with your former partner.
Keep control of the solution and don’t delegate your decision making power to the court lightly.
Defend your privacy.
Don’t spend huge amounts of money on legal fees … that is money which should go to you and your children.

Conclusion
As a family law barrister, I can assist you and your former partner to come to an agreement that you can both live with.
You will benefit from my experience in the Australian Family Law courts and benefit from the dispute resolution techniques I have developed in my practice.
My chambers are in Melbourne, however I will also mediate in Brisbane and Sydney.
Please contact my clerk, Patterson’s List, on 03 9225 7888.
Just tell my clerk that you would like to arrange a mediation with Emmanuel and we can make the arrangements.

Written by:
Emmanuel Samios LLB(Hons) LLM(QUT)
Barrister-at-Law

Comment

*