Disputes within the family

Settling a dispute within the family without going to court

Disputes within the family may involve financial matters - wills and probate, administration of an estate, or investment and distribution decisions in trusts.

They may involve decisions about caring for loved ones or as to their capacity.

If matters are found to be difficult to resolve, mediators offer a quick and easy process to help family members reach a solution acceptable to them all.

Child or matrimonial matters are dealt with by separate processes¹.

If a dispute is referred to court it will most likely be referred to mediation or to a similar process, but this is only once the claim is already underway.

So the mediation process offers a convenient and sensible way to try to settle the dispute without recourse to the courts.

Settlement by mediation is a much better way to resolve the dispute than bringing proceedings. It removes the uncertainty and tends to be quicker and cheaper. It will also be more likely to provide a long term solution which is particularly important in disputes within the family.

And this process is consistent with parties being encouraged to resolve their disputes before issuing proceedings.

Mediation has a high success rate, and mediators offer a relaxed process with sufficient time to deal with all issues. They are skilled in dealing with high emotions, and can often find ways to break through entrenched positions which the parties are unable to do themselves.

In the event that the dispute is not settled, the time and expense of the mediation will not be wasted. This is because the courts will be less likely to refer the case to mediation or to a similar process, if this has already been attempted.

1	The Magistrates Court in Queensland has some jurisdiction, but most cases go to the Federal Court under the Family Law Act 1975.

Disputes within the family

Mediation ordered by the court

Once proceedings are underway the court will be quite likely to refer it to mediation¹.

Whilst the court will appoint a mediator, the parties can decide on their own mediator if they wish².

The parties and their lawyers have a duty to co-operate in this process³.

You don't have to wait for the court to order mediation, you can try it at any stage in the proceedings which seems appropriate.

Settlement by mediation is a far better way to resolve the dispute than proceeding with the claim in court. It removes all the uncertainty and will be a lot quicker and cheaper. It will also be more likely to provide a long term solution which is particularly important in disputes within the family.

1	*Under section 43 Civil Proceedings Act 2011 (Queensland jurisdiction).*
2	*This is provided for in Rule 323 of the Uniform Civil Procedure Rules 1999 (Queensland jurisdiction); see also Forms 33 and 34 under the Rules.*
3	*Rules 322 and 325 of the Uniform Civil Procedure Rules 1999 and sections 43 and 44 of the Civil Proceedings Act 2011 (Queensland jurisdiction).*

Disputes within the family

Heading for trial? Settle the dispute now.

If you are heading for trial you can still go to mediation to try to settle the claim even if this has been tried before.

As such disputes progress towards the trial, they are often easier to settle. The risks and costs of proceeding to the trial will be clearer, relevant documentation will have been disclosed and the available evidence will have been obtained and its quality will be understood.

Settlement by mediation is a far better way to resolve the dispute than proceeding with the claim in court. It removes all the uncertainty and will be quicker and cheaper. It will also be more likely to provide a long term solution which is particularly important in disputes within the family.