DISPUTE RESOLUTION CHOICES FOR PROPERTY SETTLEMENT IN AUSTRALIA: CLIENT VIEWS ON THE ADVANTAGES AND DISADVANTAGES OF FAMILY DISPUTE RESOLUTION AND LEGAL PATHWAYS

Although many separating Australian couples make their own arrangements for property division, evidence suggests over 40% nominate either Family Dispute Resolution (FDR), lawyers or courts as their main pathway to settlement. Whereas it is compulsory to attempt FDR in parenting matters, this is not so for property matters. This paper examines client perspectives on property dispute resolution methods using interviews with 112 prospective FDR clients. Some proceeded to joint FDR and some did not, or proceeded for parenting matters only. Thematic analysis highlights the perceived benefits and disadvantages of FDR, compared to using lawyers or going to court, for property matters. We explore issues relating to the cost and character of each process, including implications for post-separation relationships. Often the initial motivation for choosing FDR was that of avoiding the legal alternatives, which were considered costlier, stressful and/or more acrimonious. After the fact, FDR participants could also identify advantages of the mediation process itself. We conclude that affordability and conflict mitigation are important to clients when choosing and evaluating pathways to property settlement. Those opting to use lawyers instead often wanted more guidance with regard to outcomes, or considered legal pathways more authoritative. Key Points for the Family Court Community Few Australians use Family Dispute Resolution (FDR, or mediation) to resolve their post-separation property matters-in stark contrast to the widespread use of FDR for parenting matters. In this context, it is important to understand why separating couples may choose FDR for property matters and why many do not. Interview data highlights the perceived benefits and disadvantages of FDR, compared to using lawyers or going to court, for property matters. Affordability and conflict mitigation are important to clients when choosing and evaluating pathways to property settlement; and were identified as advantages of FDR. Those opting to use lawyers instead often wanted more guidance with regard to outcomes, or considered legal pathways more authoritative.