Family Law: Mediation and Alternative Dispute Resolution – The Role of a Barrister

The unique features of Family Law litigation have previously been discussed, as have the similarities to criminal law and civil law litigation, in terms of the role of the barrister.  Clients in Family Law litigation often talk of settling or compromising the matter at a much earlier stage than is the case in much of the criminal law and civil law litigation. That has an impact on how legal representatives are required to prepare that litigation.

We have already established from our previous discussions about criminal law, civil law and family law litigation that:

1 The client is entitled to be advised as to all the forms of mediation and alternative dispute resolution available in respect of the case.

2 Only when:

• Full instructions have been taken from the client in the subject case; and
• A conference is held with the barrister and solicitor and client discussing all aspects of the case;

is the client in a position to make an informed decision as to:

• The merits of the case sought to be run; and
• What the client might wish to do in respect of that case.

3 The client is then optimally enabled to discuss:

• The extent to which mediation and alternative dispute resolution is appropriate in the case; and
• What the client may stand to gain or lose by compromising the matter.

In the circumstances any attempt to compromise family law litigation prior to that complete preparation being undertaken, including a comprehensive advice from and conference with the barrister, must:

• Necessarily deny the client the opportunity to be fully informed about their matter; and
• Colour any compromise accordingly.

It is even conceivable that in some circumstances the compromise might be able to be subsequently set aside by a Court as being one that was made without proper appreciation of the rights available to the client at the time.

Conclusion
Given the impact such a decision can have on your relationship with your children and/or your personal property, would you want to compromise your family law rights without being fully informed?