Australia, formerly subject to British common law, has a similar system. This is a reproduction of a recent essay task, heavily abbreviated.
Each year as a result of marriage breakdown and issues arising from it a large number of women, men and children come into contact with the legal system in its various forms, be that contact with primary dispute resolution services, the legal profession (including legal aid and community legal centres), or with the court system. Statistics indicate that most prospective divorcees are within the 25-29 year age bracket and that half of all marriages desired to be terminated are of less than 10 years. As under legislation no party can contest the dissolution of a marriage until after one year’s separation, most cases brought before the court concern the custody of children or asset division. In these circumstances, litigation is unlikely to be the most equitable or effective means. The Court acknowledges three stages of proceeding: pre-agreement, which is reached without the court but may be validated by it, resolution, agreement reached without legal imposition using facilities provided by the court, and determination, wherein matters finally come to trial.
Approximately 95% of couples who use Family Court services reach agreements via non-binding court services before matters are taken to trial, which is a course strongly encouraged because it reduces trauma, has far less hostile implications (which will, in turn, lend some cohesion to further parenting) and allows individuals to seek solutions on their own terms as court decisions rarely permit a great degree of flexibility. These arrangements can be given the same force as a court decision with a consent order (which can govern parenting, residence, contact or specific issue orders in most cases) and considerations are taken for apprehension of violence orders when legitimising these (so as to become as legally binding as an order given by the court itself).
Section 60 of the Family Law Reform Act 1995 (Cth) states that:
1) Children have the right to be cared for by both parents, regardless of marital status,
2) Children have the right to regular contact with both parents and others significant to their welfare,
3) Parents share duties and responsibilities concerning their children’s care and development and,
4) Parents should agree about the future parenting of their children.
This is the basis upon which the court acts when making decision which concern the custody of children and is also stressed as the primary consideration in less authoritative settlements. In most cases (due to reasoned assessment, rather than a legal doctrine), the mother becomes the primary caregiver while the father is apportioned certain responsibilities in order to meet the listed criteria. It is important to consider that this means a spouse may well seek maintenance in order to maintain the child’s standard of living. This can often be a contested matter in conjunction with asset division (it being held that non-monetary contributions to a household are equally valid as employment when apportioning property) or due to differing views on what should be considered a priority in attaining justice. If this is to become a legal matter, it likely means that the relationship has become drastically unequal.
Often, where disparity exists in matters of financial division or child custody, parties cannot approach dispute resolution through courts on a level footing. In particular, women (especially those who have been in lengthy relationships) often have more difficulty in this regard. With lower average earning power than their male counterparts (due to primary care of children and/or maintenance of a home), court procedures may prove inaccessibly expensive. If legal action is still sought in relation to the above matters, the absence of adequate legal representation may ensure an unjust outcome. Section 43 of the Family Law Act 1975 (Cth) advocates couples to “consider reconciliation or the improvement of their relationship to each other and to the children of the marriage” through a counsellor; alternative dispute resolution recommends itself by virtue of its minimal expense and strong emphasis on agreement over enforcement. Just as with the court, a no-fault basis is assumed and the existence of any infraction is considered a non-legal matter, where prior to the introduction of the above legislation a spouse who desired divorce would have to prove a matrimonial offence (usually habitual intoxication, cruelty, desertion, adultery or separation).
There are three basic guidelines for alternative dispute resolution: mediation, arbitration and conciliation. Mediation is the most widely recognised and involves a discussion between the two parties in the presence of a neutral third party - the mediator(s). This method functions best when the potential divorcees only seek substantiation of a general framework for a settlement. Arbitration involves the same party hearing cases presented by both sides before imposing a (non-legally binding) decision upon them, which again requires a degree of co-operation. Conciliators function as mediators, albeit with more investment of personal opinion. In this latter case, professional (experienced) advice can often hold a tenuous dialogue together far better.
Dispute resolution is, though, only as stable as the relationship between the conflicting parties and heavily subject to the nature of the dispute; if sustained conversation is impossible, so too is acquiring a settlement thereby. In instances where one party is feeling intimidated by the other, mediators may chose to utilise a triangular dialogue pattern, whereby all information is interchanged through the mediator, rather than directly. Technological advance offers solutions of this kind, providing teleconferencing facilities and other less confrontational communication methods, reducing the probability of personal attacks.
One redeeming advantage is that the mediator has the capacity to interject and attempt to divert hostile dialogue. Furthermore, mediators (as psychologists and social workers) are more likely to strive for ideal solutions than lawyers and will not neglect or omit facts from decisions (although there are no rules of evidence in mediatory sessions, a frank and complete disclosure of assets would ideally be made by both parties so as to achieve a “just and equitable” outcome as described under Section 79 of the Family Law Act 1975 (Cth)). Parties are under the obligation to make this disclosure in court, although statements made in conferences of this kind are generally confidential, thereby allowing both parties to approach later court hearings (if such there be) with greater understanding of their circumstance but no greater vulnerability.
Conciliatory processes also offer the chance for sparring couples to get back together - during the 12 month period required to demonstrate that potential divorcees are living separately and apart, couples can resume their prior relationship for periods of up to three months without invalidating prior separation. This process - if proved to be ineffective - can also function to convince a judge of irretrievable breakdown in a relationship, which is essential in obtaining the dissolution of marriage (or principal relief).
Dispute resolution mechanisms do have flaws, of course, most notably that they rely on the capacity to inject reason into emotionally-charged situations although statistics clearly demonstrate their validity, if only for the fact that only one in twenty marriage cases proceed beyond them. Evidence also suggests that settlements made in mediation sessions are more likely to be adhered to.
• Marantelli, Stephen and Nethercote, Tim, Without Prejudice, 1992, Hodder and Stoughton (Aus.) Pty. Ltd., 80 Waverley Rd., Caulfield, Victoria,
• Marantelli, Stephen and Nethercote, Tim, Without Fear or Favour, 1992, Hodder and Stoughton (Aus.) Pty. Ltd., 80 Waverley Rd., Caulfield, Victoria,
• Sexton, Michael, Uncertain Justice, 2000, New Holland Publishers Australia Pty. Ltd., 14 Aquatic Drive, Frenchs Forest, NSW,
• Bowen, Jan, the Macquarie Easy Guide to Australian Law, 1989, The Macquarie Library Pty. Ltd., Macquarie University NSW 2109,
• James, Kathleen, Barry, Rosemary and Brennan, David, the Law Handbook 8th Edition, 2002, Redfern Legal Centre Publishing Ltd., 122 George St., Redfern, NSW 2106.
• Family Court of Australia, Marriage, Families and Separation,
• Family Court of Australia, Primary Dispute Resolution Services in Family Law,
• McInnes, Elspeth Dr., Family Law (Joint Residency) Bill 2002,
• Nanlohy, Susan, the Best Interests of the Child? The Interaction of Public and Private Law in Australia,
• Morgan, John K., Alternative Dispute Resolution: Legal Obligations.