Dispute resolution is a broad term which refers to a range of processes whereby an impartial third party assists those involved in a dispute to resolve issues between them. The range of processes is virtually limitless but generally involves the dispute resolution practitioner having a facilitative, advisory or determinative role. Commonly known dispute resolution processes include arbitration, mediation, counselling, and collaborative practice. Dispute resolution processes can involve more than two parties and may or may not involve lawyers.

Dispute resolution processes were previously known as “alternative dispute resolution”. They were considered “alternative” as they offered a way of resolving disputes without resorting to judicial determination. In practice, dispute resolution processes are often a good starting point for parties to attempt to resolve the issues without the need for legal intervention. Although of course if an agreement is reached it is always recommended to have the agreement legally documented by a lawyer. If a final resolution is not reached, parties can always progress from dispute resolution to court action subject to limitation periods.

In Western Australia, since 9 April 2012, all property matters where both parties are legally represented are expected to consider arranging private mediation, alternative dispute resolution or mediation-style conferencing and be in a position to advise at the initial procedural hearing as to whether or not such conferencing has been arranged. If they have attended and any genuinely attempted to resolve their matter, the parties can apply to be exempted from the requirement to attend a Conciliation Conference which effectively expedites the matter. To do this, the parties need to hand up to the judicial officer at the first return date a summary of the issues in dispute and any issues which have been agreed.

The main advantages of dispute resolution are:

• it is a relatively quick, inexpensive way of resolving disputes;

• parties have greater involvement and control in the process;

• parties are free to define the issues according to their own viewpoints;

• solutions can be developed that would not necessarily be offered by legal remedies (particularly in collaborative practice);

• unlike the adversarial system, dispute resolution can deliver a “win/win” outcome;

• the process and its outcomes can remain confidential; and

• there is a focus on trying to maintain a good quality relationship between the parties (this can be particularly valuable where parties will continue being involved as parents long after separation).

Sometimes it can be to the advantage of one party over the other party to delay the institution of proceedings. Care must be taken to ensure that the dispute resolution processes are pursued by both parties making a genuine or bona fide effort to resolve matters and that those processes are not being pursued to delay or frustrate court proceedings.

It is important to note that dispute resolution processes will not oust the jurisdiction of the Family Court. A person always retains the option to settle issues or seek orders in the courts if they are unable to reach an agreement during a dispute resolution process. Mediators and solicitors representing parties in a collaborative dispute resolution process cannot later represent a party in court if the matter proceeds to litigation.

The court is under a positive obligation to inform parties about alternative methods of resolving disputes including dispute resolution and counselling services. See s 62B of the Family Law Act 1975.

A lawyer is also under a positive obligation to provide their client with information regarding dispute resolution and services that are available to assist parties in resolving their disputes without recourse to judicial determination and in adjusting to the consequences of particular orders. See Information to be provided to the client.

If there is a history of family violence, it may not be appropriate for parties to participate in counselling or dispute resolution processes. Safety should always be a main priority. See the Family Violence Best Practice Principles released by the Family Court of Australia.