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Main mechanisms for resolving disputes and encouraging co- operation
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1. MAIN MECHANISMS FOR RESOLVING CONFLICT AND ENCOURAGING COOPERATION. ‘Dispute Resolution’ refers to all methods for settling disputes. Disputes are resolved by a range of individuals and social institutions, including the legal system. In relation to Family and the law, the majority of “family” cases involving disputes, do not include any person breaking the law. Rather, there is a dispute that requires resolution. Causes of this conflict can be many different reasons including the following: - Sexual and/or emotional incompatibility. - Work-related stress. - Inadequate housing. - Lack of communication. - Unemployment. - Physical or mental illness. - Drug addiction. - Cultural isolation. - Differing perception of roles. It can be these very problems that cause domestic violence or even the dissolution of marriage. Therefore, the law attempts to encourage cooperation between the parties in resolving these conflicts. The use of the Family Court, the Children’s Court, the Federal Magistrates Service, and alternative dispute resolution techniques can often provide resolution to conflict, but also foster healthy ongoing communication between the parties and provide a more suitable outcome for any children of the marriage. These channels of dispute resolution are discussed below. The Family Court of Australia This special federal court was established with the Family Law Act 1975 to keep family matters out of the mainstream courts. Its role is to ensure that Commonwealth legislation is administered in regard to the dissolution of marriage and protecting the best interests of the children. It is a somewhat less formal court than other courts, although formality was increased after the mid 1980’s to counter criticism. Advantages of court based adjudication include: - A decision of the court or tribunal is legally enforceable. - The people in dispute can be compelled to attend, to answer questions under oath, and to produce documents and other evidence; and - Some issues, especially issues concerning violence, child abuse and abduction, can be dealt with urgently. However, there are some disadvantages: - The expense - The time it can take for the case to reach a hearing - The expectation that parties will undergo counselling, mediation etc - The fact that there may be less opportunity for a compromise; and - The formality. The Family Court uses other methods to solve disputes besides court hearings. It has recently undergone reforms that has seen the rise in the importance of these alternative dispute resolution. Alternative Dispute Resolution A major area of change in the resolution of marital breakdown was introduced by the Family Law Reform Act 1995. The aim of this reform was to encourage people to use alternative dispute resolution techniques such as counselling, mediation and arbitration rather than taking legal action in the Family Court. The term ‘ADR’ is used broadly to refer to all methods of resolving disputes, other than court based adjudication. There has been substantial controversy about the use of the word ‘alternative’ as it implies that litigation is the normal, standard or ideal dispute resolution method. So ‘alternative’ has now been replaced with ‘primary’. This is to highlight the fact that they are much more likely to be a first option than an alternative. Primary dispute resolution involves using techniques such as mediation, conciliation and arbitration to reach consensus on important decisions regarding family matters, such as the dissolution of marriage. Their common feature is that an impartial, neutral third party helps the parties reach agreement, or atleast a workable compromise. Primary dispute resolution does not occur where violence has been a factor. This is because mediation etc is a method of resolving disputes on the premise that parties have equal bargaining power and an ability to negotiate decisions. Violence, however, creates an extreme imbalance of power which generally cannot be addressed by the mediator. This can result in unfair and inequitable resolutions of disputes in which someone is further disadvantaged. Below are the alternative dispute resolution techniques supported and sponsored by the Family Court. It should be noted that these alternative avenues of dispute resolution can be very effective in appropriate cases, but should not be forced upon parties in conflict. Mediation Mediation is a method of resolving workplace, community, family, commercial, building and environmental disputes.
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