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Alternate Dispute Resolution

Mar 17

Estate & Inheritance Disputes: Resolve Them Without Destroying Your Family

By Alternate Dispute Resolution, Estate Dispute Mediation, Estate Litigation, Mediation

The death of a parent, sibling, or spouse is one of the most difficult experiences a family can face. When a dispute emerges over how an estate is to be distributed — or whether a will is valid at all — grief can quickly transform into something harder and colder: litigation.

Estate and inheritance disputes are on the rise in Australia. An ageing population, rising property values, blended families, and increasingly complex financial arrangements (including superannuation and self-managed super funds) are creating more contested estates than any previous generation has seen.

The cost of that conflict — financially, emotionally, and in terms of family relationships — is real and lasting. Courts take years. Legal fees can consume a significant portion of the estate being fought over. And by the time a matter reaches judgment, the family relationships it was fought over are often beyond repair.

Mediation offers a better way.

Types of Estate Disputes

Estate disputes in Australia typically fall into several categories:

Contested Wills

A will can be contested on the grounds that it was not validly executed, that the testator lacked testamentary capacity at the time it was made, that the testator was subject to undue influence, or that the document itself does not accurately reflect the testator’s intentions. These claims are governed by succession legislation in each state and territory.

Family Provision Claims

Every Australian state and territory has legislation allowing eligible persons to apply to a court for provision (or additional provision) from an estate if they have not been adequately provided for. The relevant legislation includes:

  • Succession Act 2006 (NSW)
  • Succession Act 1981 (QLD)
  • Administration and Probate Act 1958 (VIC) and Wills Act 1997 (VIC)
  • Inheritance (Family Provision) Act 1972 (SA)
  • Family Provision Act 1972 (WA)
  • Testator’s Family Maintenance Act 1912 (TAS)
  • Family Provision Act 2004 (ACT)
  • Administration and Probate Act 1969 (NT)

Eligible applicants generally include spouses, de facto partners, children (including adult children), and in some jurisdictions, other dependants. The court assesses what “adequate provision” looks like having regard to the applicant’s financial circumstances and the relationship with the deceased. Full text of relevant legislation is available at legislation.gov.au and through AustLII.

Superannuation Death Benefit Disputes

Superannuation does not automatically form part of a deceased’s estate. The trustee of the super fund has discretion to pay the death benefit to an eligible dependant or the estate, unless a binding death benefit nomination is in place. Where a nomination is absent, invalid, or disputed, conflicts between family members can be significant — particularly where the super balance is substantial.

Executor Disputes

Disputes can also arise over the conduct of an executor — allegations of delay, mismanagement of estate assets, failure to account, or self-dealing. These matters can be brought before the relevant state Supreme Court but are well-suited to mediation where the parties’ underlying interests are better served by resolution than by formal removal proceedings.

Family Provision Claims: A State-by-State Overview

Family provision claims are the most common form of estate litigation in Australia, and the law differs meaningfully across jurisdictions.

New South Wales

Under the Succession Act 2006 (NSW), eligible persons can apply for a family provision order from the estate of a deceased person. Eligibility extends broadly — including spouses, de facto partners, children, former spouses, and persons who were wholly or partly dependent on the deceased. The application must be made within 12 months of the date of death, though courts have discretion to extend this timeframe. The NSW Supreme Court has a well-established practice of referring family provision matters to mediation before they are set down for hearing. Many matters settle at mediation.

Queensland

The Succession Act 1981 (Qld) governs family provision claims in Queensland. Eligible applicants include the spouse, children, and dependants of the deceased. Claims must generally be made within nine months of the date of death. The Supreme Court of Queensland actively encourages mediation in estate matters.

Victoria

In Victoria, family provision claims are made under the Administration and Probate Act 1958 (Vic). Victoria has a broader eligibility framework than some other states — a stepchild or registered caring partner may also be eligible in some circumstances. Claims are heard in the Supreme Court of Victoria, which routinely refers contested estate matters to mediation.

South Australia, Western Australia, and Other States

Each remaining state and territory has its own legislative framework and time limits. The common thread is that family provision claims are expensive, emotionally draining, and often resolved through mediation before reaching trial — because both parties eventually recognise that the cost of litigating to judgment is rarely worth it.

The AustLII database is a useful resource for accessing the relevant legislation in each state and territory.

Superannuation Death Benefits: A Growing Source of Conflict

Superannuation is now one of the largest assets many Australians hold. For many families, the super death benefit is larger than the entire probate estate. Yet it is not governed by the same rules as estate distribution.

When a person dies, their superannuation does not automatically pass to their estate. The trustee of the superannuation fund has legal discretion to pay the death benefit to an eligible dependant (a spouse, child, or financial dependant) or to the legal personal representative of the estate — unless a valid binding death benefit nomination (BDBN) is in place.

Where a BDBN exists and is valid, the trustee must follow it. But BDBNs can be challenged on the grounds of:

  • Failure to comply with the formal requirements (including witnessing requirements)
  • Mental incapacity at the time of signing
  • Fraud or undue influence
  • The nomination having lapsed

Where there is no valid BDBN, the trustee exercises discretion — and that discretion can be challenged if beneficiaries believe it was exercised improperly. Disputes between family members about the proper recipient of a death benefit are increasingly common, particularly in blended family situations where the deceased had children from a prior relationship as well as a current spouse.

These disputes are heard by the Australian Financial Complaints Authority (AFCA) in the first instance, or by the courts. But they are also amenable to mediation — particularly where the dispute is about the distribution of a fixed pool of assets rather than a matter of legal principle.

Executor Disputes: When the Person in Charge Is Part of the Problem

The executor of an estate has significant legal responsibilities — to gather and protect assets, pay debts, and distribute the estate in accordance with the will. When an executor is also a beneficiary (which is common), conflicts of interest can arise.

Common executor disputes include:

  • Delay in administration — beneficiaries becoming frustrated with slow progress and alleging the executor is mismanaging the process
  • Failure to account — failure to provide clear accounts of assets, income, and expenses to beneficiaries
  • Self-dealing — allegations that the executor has used estate assets for their own benefit, or has acquired estate property at below-market value
  • Disagreements about asset sales — particularly where the estate includes a family home or business that some beneficiaries want retained and others want sold

The remedy for executor misconduct is an application to the relevant state Supreme Court for the executor to be removed and replaced. This is an expensive and adversarial process — and one that can often be avoided through mediation, where the executor and beneficiaries can reach agreement on timelines, information sharing, and distribution without needing a court order.

What Can and Cannot Be Mediated in an Estate Dispute?

Mediation is appropriate for most estate disputes, but there are some limitations.

Well-suited to mediation:
– Family provision claims — determining appropriate provision and its form (lump sum, right to reside, specific asset)
– Executor conduct disputes — agreeing on timelines, accounts, and distribution
– Disputes about the interpretation of will terms
– Superannuation death benefit disputes (once formal processes have been engaged)
– Disputes between beneficiaries about how assets should be distributed or liquidated

Less suitable for mediation:
– Challenges to the validity of a will on grounds of fraud or serious undue influence — these often require court intervention and may involve criminal conduct
– Disputes involving a party who lacks mental capacity to participate meaningfully
– Situations where urgent court orders are needed to protect estate assets from dissipation

Even in these more complex situations, mediation can play a role alongside, rather than instead of, legal proceedings — for example, in narrowing the issues for court after urgent protective orders have been obtained.

The Cost of Contesting a Will vs Mediation

The financial case for estate mediation is compelling. Consider the realistic costs:

Pathway Approximate Cost (indicative) Timeframe
Mediation $3,000–$10,000 (shared) 1–2 sessions; weeks
Solicitor-negotiated settlement $10,000–$30,000+ per party Months
Family provision trial (Supreme Court) $50,000–$200,000+ per party 1–3 years

These are indicative ranges only. Costs vary significantly depending on complexity, legal representation, and jurisdiction.

In estates where the disputed amount is less than $200,000, the cost of Supreme Court litigation can easily exceed the value of the claim. Even in larger estates, the financial and emotional cost of years of litigation must be weighed against the prospect of a mediated outcome that may be less than “full victory” but achieves certainty and resolution.

Legal aid is available in some circumstances — Legal Aid commissions in each state may be able to assist eligible applicants. For general information about costs, see our article on the costs of mediation and mediation — who pays?.

Why Litigation Is So Destructive in Estate Disputes

Estate litigation is qualitatively different from commercial litigation. The parties are family members. They may have decades of shared history, unresolved grievances, and deeply personal stakes. The legal system is not well-equipped to navigate this complexity — it can determine legal entitlements, but it cannot repair damaged relationships or honour the informal wishes of someone who has passed.

The Supreme Courts in most Australian states now actively encourage — and in some cases, require — that estate disputes be referred to mediation before being set down for trial. Many family provision matters settle at mediation, often on terms that the parties themselves design.

The Australian Government Attorney-General’s Department has recognised alternative dispute resolution as a priority for reducing the burden on the court system, particularly in family and estate matters.

For a broader view of why avoiding litigation is often the right call, see why going to court for your dispute is a mistake.

How Mediation Works for Estate Disputes

Estate mediation typically involves:

  • Preparation — each party, usually assisted by their solicitor, prepares a brief summary of their position and key documents (the will, asset valuations, evidence of relationship, financial circumstances)
  • Separate pre-mediation consultations — the mediator meets privately with each party before the joint session to understand their interests and concerns
  • Joint session — the mediator facilitates a structured discussion; parties are encouraged to speak to their experiences, not just their legal positions
  • Private caucuses — the mediator works between parties to test proposals and bridge gaps
  • Settlement agreement — if resolved, a binding agreement is drafted, often to be formalised as consent orders or a deed of family arrangement

Importantly, family members who are not named in the will but have a genuine stake in the outcome can be included in the mediation. This is something the court process rarely accommodates.

You can read more about the estate dispute mediation process specifically, or explore our broader family mediation services.

Is Mediation Right for Your Estate Dispute?

Mediation is appropriate for most estate disputes, including contested will claims, family provision applications, superannuation death benefit disputes, and executor conduct disputes. It is less likely to be suitable where:

  • There are allegations of serious fraud or elder abuse requiring immediate court intervention
  • A party lacks legal capacity to participate meaningfully
  • One party is unrepresented and there is a significant power imbalance that cannot be managed by the mediator
  • Urgent court orders are needed to protect estate assets from dissipation

In those circumstances, it remains important to obtain legal advice promptly.

Practical Tips for Estate Mediation

Get legal advice first

While you do not need a lawyer present at mediation (though many parties choose to bring one), it is strongly recommended that you obtain independent legal advice before the session. Understanding your legal rights — including whether you have a viable family provision claim, what time limits apply, and what a court might realistically award — gives you a realistic basis for negotiation.

Many solicitors who practise in estate law are experienced in mediation and can help you prepare a position paper that clearly articulates your claim and the basis for it.

Gather financial information

Estate mediation is most productive when both parties have a clear picture of the estate’s assets and liabilities. Before the session, you should have access to:

  • A copy of the will and any earlier wills
  • A schedule of estate assets and their estimated values (including real property, investments, bank accounts, and personal property)
  • Information about any superannuation and whether a binding death benefit nomination exists
  • Details of the deceased’s financial position at the date of death, including any debts

If the executor has not provided this information, you may need to request it formally — and if it is not forthcoming, this itself may be grounds for a complaint or application to the court.

Think about what you actually need

Many family provision claims are driven by genuine financial need — a child who was financially dependent on the deceased, or who contributed to the care of the deceased in their final years, may have a real claim to provision. But some claims are driven more by hurt feelings, family grievances, or a sense of injustice about how the estate was structured.

In mediation, being clear about what you genuinely need — and why — opens up a wider range of possible outcomes. A court can only award money or specific assets. A mediated outcome might also include an apology, a recognition of contribution, a transfer of a specific item of sentimental value, or other non-financial elements that the court could never order.

Be ready to hear the other side’s perspective

Estate disputes are often the culmination of a lifetime of family dynamics. Mediation creates space for those dynamics to be acknowledged — not to relitigate the past, but to understand each other’s perspective well enough to reach a resolution both parties can accept. This is often where the real work of estate mediation happens.

For more information on how estate mediation works, see our dedicated estate dispute mediation page, or explore our broader family mediation services.

Take the First Step

Estate disputes don’t need to destroy what a person spent a lifetime building — including their family. Mediations Australia works with families navigating some of the most difficult conversations they’ll ever have.

Book a consultation to find out how mediation can help your family reach a resolution that honours everyone’s interests.

This article is general information only and does not constitute legal advice. Estate law in Australia is state and territory-based and the applicable legislation will depend on where the deceased was domiciled. Superannuation law is federal. You should seek independent legal advice from a qualified Australian solicitor in relation to any estate dispute.

Mar 13

The Right to Disconnect: Resolving Disputes Under Australia’s New Laws

By Alternate Dispute Resolution, Employment Law, Mediation, Workplace Mediation

From 26 August 2024, employees at large Australian businesses gained a legal right to refuse to monitor, read, or respond to contact from their employer outside of work hours — unless that refusal is unreasonable. From 26 August 2025, the same right extended to employees at small businesses.

This change, introduced through amendments to the Fair Work Act 2009 (Cth), represents one of the most significant shifts in Australian workplace law in recent years. It recognises what many employees have long experienced: the boundary between work and personal life has blurred, and that blurring has real costs to health, wellbeing, and productivity.

But the right to disconnect isn’t a blanket prohibition on after-hours contact. And when employers and employees disagree about whether a refusal was reasonable — or whether contact crossed the line — there is a formal dispute resolution process to follow. Mediation sits at the heart of that process.

What the Right to Disconnect Actually Means

Under the amendments to the Fair Work Act, an employee may refuse to:

  • Monitor work-related communications (emails, calls, messages) outside their ordinary working hours
  • Read such communications outside their ordinary working hours
  • Respond to those communications outside their ordinary working hours

This applies unless the refusal is “unreasonable.” The Fair Work Act identifies several factors that are relevant to determining whether a refusal is unreasonable, including:

  • The reason for the contact
  • The nature of the employee’s role and their level of responsibility
  • Whether the employee is compensated for being available or for working additional hours
  • The impact of the contact or the refusal on the employer or other parties
  • Personal circumstances of the employee (including family or caring responsibilities)

Importantly, the right does not prevent employers from making contact — it gives employees the right to refuse to respond. The Fair Work Ombudsman has published guidance on how the right applies in practice.

What Counts as “Unreasonable” Refusal?

This is the critical question that drives most right to disconnect disputes — and the one where context matters most. There is no definitive list of what constitutes an unreasonable refusal. The assessment is contextual and will be made by the Fair Work Commission (FWC) on a case-by-case basis.

However, the Fair Work Act provides a framework. The following factors are relevant to determining whether a refusal to respond is unreasonable:

The reason for the contact. If the employer is contacting an employee because of a genuine emergency — a data breach, a safety incident, a critical client escalation — refusing to respond may be unreasonable. Routine follow-up on a non-urgent matter at 10pm on a Sunday is a different situation entirely.

The nature of the role. Senior managers, executives, and those in roles with inherent on-call expectations — such as IT operations, emergency services contractors, or hospital administrators — are in a different position from frontline staff or junior employees. The FWC will consider whether after-hours availability is a genuine and understood part of the role.

Compensation for availability. If an employee receives an allowance, higher base salary, or other remuneration specifically to compensate for after-hours availability, this weighs in favour of a refusal being unreasonable. Conversely, if no such compensation is provided, the expectation of after-hours response becomes harder to justify.

The method and urgency of contact. A phone call at midnight from a direct manager differs from a non-urgent Slack message. The FWC will consider whether the method and timing of contact was proportionate to the urgency of the matter.

The employee’s personal circumstances. Caring responsibilities, health conditions, and other personal factors are explicitly included in the assessment framework. An employee with young children or a health condition that requires rest may have stronger grounds for declining after-hours contact.

The size and operational context of the business. A small business with fewer resources and fewer staff may have a more legitimate claim that certain employees need to be contactable outside hours than a large organisation with a substantial workforce.

Safe Work Australia provides guidance on the psychosocial risks of always-on work culture at safeworkaustralia.gov.au. These risks — including burnout, anxiety, and impaired recovery — are part of the broader work health and safety context in which right to disconnect disputes arise.

Small Business vs Large Business: Key Differences

The right to disconnect applied to large business employees from 26 August 2024, and was extended to small business employees from 26 August 2025. Under the Fair Work Act, a “small business employer” is one with fewer than 15 employees.

There is no substantive difference in the right itself — it applies equally regardless of employer size. However, the practical application differs in several ways:

Operational dependency. In a small business, individual employees often carry more operational responsibility and may be genuinely harder to replace in an emergency. The FWC is likely to take this into account when assessing whether a refusal was unreasonable in a small business context.

Policy sophistication. Large businesses typically have more formal HR policies, employment contracts, and communication protocols. Small businesses may be operating with minimal documentation, which can create ambiguity about what after-hours expectations actually exist.

Dispute resolution capacity. A large business will generally have an internal HR team or EAP to assist with disputes before they reach the FWC. Small business owners may be dealing directly with their employees without that support infrastructure — making early access to mediation particularly valuable.

Cost sensitivity. The cost of FWC proceedings — even as a respondent — can be disproportionate for a small business. Resolving a right to disconnect dispute through workplace mediation is significantly cheaper and faster.

FWC Stop Orders and Civil Penalties

If a right to disconnect dispute cannot be resolved at the workplace level and is referred to the Fair Work Commission, the Commission has the power to make orders.

Stop orders

The FWC can make a stop order directed at either party:

  • An order requiring an employee to stop unreasonably refusing contact from the employer
  • An order requiring an employer to stop taking adverse action against an employee for exercising their right to disconnect

Stop orders are enforceable. Contravening a stop order without a reasonable excuse is a civil penalty provision — meaning the party in breach can face significant financial penalties.

Civil penalties

As of the time of writing, the civil penalty for a contravention of an FWC stop order can be substantial — the maximum penalties for individuals and corporations under the Fair Work Act are significant and should not be underestimated. Visit fairwork.gov.au or fwc.gov.au for current penalty amounts.

Adverse action protection

An employee who exercises their right to disconnect is protected from adverse action by their employer. If an employer takes action — including dismissal, demotion, reduction in hours, or change of duties — that is causally connected to an employee’s exercise of their right to disconnect, the employer may face an adverse action claim under the general protections provisions of the Fair Work Act.

This protection is significant. It means that simply complying with the law and refusing to respond to after-hours contact should not put an employee’s job at risk.

Employer Obligations: Policy and Practical Steps

The right to disconnect creates practical obligations for employers beyond mere compliance. Businesses should be proactively addressing this in their policies and management practices.

Update your policies

Employment contracts, workplace policies, and enterprise agreements should be reviewed to ensure they do not contain terms that are inconsistent with the right to disconnect. Policies that create an implicit obligation to respond to after-hours contact — or that describe after-hours responsiveness as a performance expectation — may need to be updated.

Clarify legitimate expectations

Businesses should clearly document which roles carry genuine after-hours expectations and the basis for those expectations (including any additional compensation). This provides clarity for both employees and managers and reduces the risk of disputes arising from ambiguity.

Train managers

Managers need to understand the right to disconnect and what it means practically. Many disputes in this area arise because managers are not aware of the legal position — they assume that sending a message outside hours is inherently acceptable and that employees are obliged to respond. Training on what the right means, and how to communicate expectations in a legally compliant way, reduces the risk of inadvertent breaches.

Establish internal pathways

Businesses should have a clear internal pathway for employees to raise concerns about after-hours contact — including access to HR, an employee assistance program, or a workplace mediator — before disputes escalate to the FWC.

Who Is Covered?

The right applies to all employees covered by the national workplace relations system under the Fair Work Act. This includes most private sector employees in Australia. There are some exceptions and nuances — for example, the right interacts with enterprise agreements and modern awards, some of which may contain specific provisions about after-hours contact and availability.

For current and detailed information on coverage, visit fairwork.gov.au or the Fair Work Commission.

How Disputes Must Be Resolved

When a dispute arises — for example, an employer believes an employee’s refusal was unreasonable, or an employee believes they are being pressured to respond despite exercising their right — the Act prescribes a process:

Step 1: Resolve it in the workplace first

The primary obligation is to resolve the dispute at the workplace level. This means genuine discussion between the employee and their manager, and where appropriate, involvement of HR or a workplace mediator. Many disputes at this stage are resolved informally.

This is where workplace mediation becomes particularly valuable. A skilled, neutral mediator can help both parties articulate their concerns, understand each other’s perspective, and reach a practical agreement — without the dispute escalating.

Step 2: Refer to the Fair Work Commission

If the dispute cannot be resolved at the workplace level, either party may apply to the Fair Work Commission for assistance. The Commission has powers to deal with the dispute through mediation, conciliation, or — if necessary — making orders.

The Commission can make orders to stop an employee from unreasonably refusing contact, or to stop an employer from taking adverse action against an employee who exercised their right. Contravening such orders can result in significant civil penalties.

It is worth noting that the Commission’s preference is also for parties to attempt resolution before formal orders are made. Mediation remains the expected first step even within the Commission’s process.

Practical Steps for Employees Before Mediation

If you are an employee who believes your right to disconnect is not being respected:

  1. Keep records. Document the after-hours contact — save emails, messages, and call logs with dates and times. Note whether the contact was urgent, what was requested, and whether you responded.
  2. Check your award or agreement. Your modern award or enterprise agreement may contain specific provisions about after-hours contact and availability. Understanding these gives you a clearer picture of your rights.
  3. Raise it internally first. Before escalating, consider raising your concern with your manager or HR. A calm conversation that cites the Fair Work Act and explains your position is often effective — many managers are simply unaware of the new obligations.
  4. Seek advice. If internal discussion doesn’t resolve the issue, consider contacting the Fair Work Ombudsman or accessing free advice through a community legal centre at lawaccess.gov.au (NSW) or the Law Access service in your state.
  5. Request mediation. Workplace mediation offers a confidential, cost-effective path to resolution before an FWC application becomes necessary.

Practical Steps for Employers Before Mediation

If you are an employer managing a right to disconnect dispute:

  1. Don’t dismiss the concern. An employee raising a right to disconnect issue is exercising a legal right. Dismissing or penalising them creates serious legal risk.
  2. Review the contact pattern. Honestly assess whether after-hours contact expectations in your business are reasonable and proportionate to the role and its compensation.
  3. Consider your obligations. Under work health and safety law, you have an obligation to manage psychosocial hazards — including unreasonable work demands. The right to disconnect intersects with these obligations.
  4. Engage mediation early. Workplace mediation can resolve a right to disconnect dispute quickly and confidentially — without the cost and disruption of an FWC application.

Why Mediation Matters Here

The right to disconnect sits in an inherently human context. It is not just about legal compliance — it is about how people are treated at work and how workplace cultures are shaped. Disputes in this area can quickly become personal, damaging relationships between employees and managers that may otherwise be functional and productive.

Workplace mediation is specifically designed to address this. It creates space for both parties to be heard, helps clarify what each side actually needs (as distinct from their stated positions), and produces agreements that both parties have some ownership over. That tends to produce better outcomes — and more durable ones — than those imposed by a tribunal or court.

You can learn more about what to expect from the mediation process in our guide on preparing for mediation.

For more on the role of the Fair Work system in workplace disputes, see our article on the role of Fair Work Australia and workplace mediation.

Resolve Your Workplace Dispute Before It Escalates

Whether you’re an employee who feels their right to disconnect is not being respected, or an employer managing an after-hours contact dispute, Mediations Australia can help.

Our accredited workplace mediators work with both parties to reach practical, fair outcomes — before the Fair Work Commission gets involved.

Book a consultation today.

This article is general information only and does not constitute legal advice. Workplace relations law in Australia is complex and the application of the right to disconnect will depend on individual circumstances, applicable awards or agreements, and the specific facts of each case. You should seek independent legal advice if you are involved in a workplace dispute.

Mar 09

Shareholder & Partnership Disputes: Resolving Them with Mediation

By Alternate Dispute Resolution, Litigation, Mediation

Shareholder and partnership disputes are among the most damaging conflicts a business can face. When two or more people who built something together reach an impasse — over strategy, profit distribution, management decisions, or alleged breaches of duty — the fallout can be swift and severe. Assets get frozen. Operations stall. Key staff leave. And if the dispute reaches court, the legal costs alone can cripple even a healthy business.

Australia is currently experiencing elevated levels of corporate stress. Rising interest rates, tightening credit, and inflationary pressure have made boardroom tensions more common. Disagreements that might have been managed during growth periods are now escalating into formal disputes. Against this backdrop, mediation offers shareholders and business partners a structured, confidential, and commercially sensible path forward.

What Triggers Shareholder and Partnership Disputes?

The most common sources of conflict include:

  • Deadlock in decision-making — where equal or near-equal shareholders cannot agree on a material direction for the company
  • Alleged breaches of directors’ duties — under the Corporations Act 2001 (Cth), directors owe duties of care, good faith, and to act in the best interests of the company
  • Unfair prejudice and oppressive conduct — where a minority shareholder argues their interests are being oppressed by the majority
  • Profit distribution disputes — disagreements over dividends, drawings, or reinvestment
  • Exit and buyout disagreements — when one party wants out but cannot agree on a valuation or mechanism
  • Breaches of shareholder or partnership agreements — including restraint of trade, confidentiality, or non-compete provisions
  • Valuation disputes — where parties disagree fundamentally on what the business or a shareholding is worth

ASIC provides guidance on directors’ duties and corporate governance at asic.gov.au, and many disputes that reach mediation involve at least one alleged breach of these obligations.

The Corporations Act 2001: Key Provisions in Dispute

Oppressive Conduct — Part 2F.1

One of the most significant — and frequently invoked — provisions in shareholder disputes is Part 2F.1 of the Corporations Act 2001 (Cth), which deals with conduct that is “oppressive” to, or “unfairly prejudicial” to, or “unfairly discriminatory” against, a member or members of a company.

A minority shareholder who believes the majority is exercising their power in a way that is commercially unfair — including exclusion from management, withholding of dividends without justification, or dilution of their shareholding — may bring an oppression claim. The courts have broad remedies available, including ordering the purchase of shares, appointing a receiver, modifying the company’s constitution, or winding up the company.

But court proceedings under Part 2F.1 are expensive, slow, and disruptive. Mediation offers an opportunity to address the underlying grievance before the relationship deteriorates to the point of formal oppression proceedings.

Directors’ Duties

Directors of Australian companies owe statutory duties under the Corporations Act, including:

  • A duty to act in good faith in the best interests of the corporation (s 181)
  • A duty to use their powers for a proper purpose (s 181)
  • A duty to avoid conflicts of interest (s 182, s 183)
  • A duty to act with care and diligence (s 180)

When one director accuses another of breaching these duties — for example, by diverting business opportunities to a related entity, or by failing to disclose a conflict — the dispute is often better resolved through mediation than through costly litigation. Mediation allows both parties to surface concerns, exchange information, and negotiate remedies (such as payment of compensation, restructuring of arrangements, or departure terms) without the reputational damage of a public proceeding.

Deadlock Clauses in Shareholder Agreements

A well-drafted shareholder agreement will contain provisions for resolving deadlock — situations where two equal shareholders (often 50/50) are unable to agree on a key decision. Common mechanisms include:

  • Casting vote provisions — giving one director or shareholder a casting vote on specific categories of decision
  • Mediation and arbitration clauses — requiring the parties to engage a mediator or arbitrator before any legal action
  • Russian roulette clauses — where one party offers to buy the other out at a specified price, and the other party can either accept or reverse the offer at the same price
  • Shotgun clauses — where one party names a price and the other must either buy or sell at that price
  • Bring-along and drag-along provisions — to facilitate agreed exits

If your shareholder agreement contains a dispute resolution clause — typically requiring mediation before legal proceedings — you may be contractually obliged to engage that process first. Failing to do so can expose you to adverse cost orders if you commence litigation prematurely.

Even in the absence of a formal agreement, courts across Australia increasingly expect parties to genuine commercial disputes to have attempted mediation before filing proceedings.

Valuation Disputes in Business Exits

One of the most common practical obstacles to resolving a shareholder or partnership dispute is disagreement over what the business — or a particular shareholding — is actually worth.

Valuation disputes arise in several contexts:

  • Buy-sell provisions triggered by retirement, death, or dispute
  • Compulsory share acquisition proceedings under the Corporations Act
  • Exit negotiations where one party wants to sell and the parties cannot agree on price
  • Compensation calculations in oppression or breach of duty claims

Valuations for private companies are notoriously difficult. There is no single correct methodology — different approaches (discounted cash flow, earnings multiples, net asset value) can produce widely divergent results. Expert valuers employed by opposing parties will often produce significantly different figures.

Mediation can be particularly effective in valuation disputes because it allows a conversation about the valuation methodology itself — not just the numbers — and can help parties reach a compromise that avoids the cost and uncertainty of a contested expert process. Some mediators will also facilitate the appointment of a single jointly instructed expert, which substantially reduces cost and removes the adversarial dynamic from the valuation exercise.

Exit Mechanisms and Buyouts

When one party wants to exit a business and the other does not (or cannot agree on terms), the consequences for both the business and the parties can be severe. Common scenarios include:

  • A co-founder who wants to exit after a personal or strategic falling-out
  • A shareholder who has become a passive investor and wants liquidity
  • A family business where one generation wants to exit and the other wants to continue
  • A partner who retires and whose interest needs to be acquired by the continuing partners

In the absence of agreement on exit terms, the exiting party’s options are limited: commence oppression proceedings under the Corporations Act, apply for a winding-up order, or attempt to sell their shares to a third party (which may be restricted by the shareholders agreement).

None of these outcomes is particularly desirable. Winding up a viable business destroys value for everyone. Selling to a third party may be impossible or undesirable. And oppression proceedings are expensive and time-consuming.

Mediation creates a structured environment for the parties to negotiate exit terms — including price, payment arrangements, restraint obligations, and transition support — without the cost and disruption of litigation. Many business exits that begin as adversarial disputes are resolved through mediation on terms that both parties can accept.

The Legal Framework for Resolving Business Disputes

The Corporations Act 2001 (Cth) governs the conduct of companies and their officers. It does not mandate mediation, but it does provide pathways that courts often expect parties to have genuinely attempted before proceeding to litigation.

Most professionally drafted shareholder agreements and partnership agreements contain multi-tiered dispute resolution clauses. These typically require:

  1. Direct negotiation between the parties within a set timeframe
  2. Formal mediation with an accredited mediator if negotiation fails
  3. Arbitration or litigation only as a last resort

If your agreement contains such a clause, you may be contractually obliged to attempt mediation before commencing legal proceedings. Skipping that step can expose a party to adverse cost orders.

Even where no such clause exists, courts across Australia — including the Federal Court and state Supreme Courts — routinely refer commercial disputes to mediation under their case management powers. Mediation is no longer optional in commercial litigation; in many cases, it is expected.

Mediation vs Court-Ordered Winding Up

A court-ordered winding up is often the last resort when a business relationship has completely broken down. But it is also one of the most destructive outcomes available: it destroys the business, deprives both parties of the going concern value of the enterprise, and typically leaves both worse off than a negotiated resolution would have.

Courts have consistently shown reluctance to wind up an otherwise solvent and viable business simply because the shareholders cannot agree. Before making a winding-up order in a shareholder dispute context, courts will typically want to be satisfied that all other options — including mediation and buy-out — have been genuinely explored.

Mediation offers a genuine alternative. Even in deeply adversarial situations, a skilled mediator can help parties understand the cost of the alternatives (including the value destruction inherent in winding up) and reach a negotiated outcome — whether that is a structured buyout, a managed exit, or a business sale to a third party on terms both can accept.

Why Mediation Works for Business Disputes

1. Confidentiality

Unlike court proceedings, mediation is private. What is said in the session cannot be used in subsequent litigation (with limited exceptions). For businesses, this is critical — disputes about finances, operations, or director conduct that become public can damage customer confidence, supplier relationships, and the company’s market position.

2. Speed

Commercial litigation in the Supreme Court or Federal Court can take two to four years from filing to judgment, and often longer. Mediation can typically be scheduled within weeks and resolved within one or two sessions. When a business is deadlocked, time is money.

3. Commercial outcomes

A court can grant specific forms of relief — winding up orders, buy-out orders, injunctions. But a court cannot design a commercial solution that accounts for tax implications, supplier relationships, financing arrangements, or the personal circumstances of the parties. Mediation allows parties to craft outcomes that a judge simply could not impose.

4. Preservation of the business and relationships

Many shareholders have long histories — as friends, family members, or long-term colleagues. Even when the relationship has fractured, mediation provides space to resolve the legal dispute without the adversarial dynamics of litigation, which tend to deepen animosity and make future co-operation impossible.

What Mediation Looks Like in a Business Context

Business mediation typically involves:

  • Pre-mediation preparation — each party prepares a position paper and shares key documents with the mediator
  • Opening session — the mediator explains the process and sets ground rules; each party briefly outlines their position
  • Private caucuses — the mediator meets separately with each party to explore interests, options, and flexibility
  • Joint negotiation — where the parties and mediator work toward a written agreement
  • Settlement deed — if resolved, the parties execute a binding document on the day (often reviewed by their lawyers before signing)

You can read more about what to expect in preparing for mediation and how long mediation takes.

When Is Mediation Not Appropriate?

Mediation requires both parties to engage in good faith. It may not be suitable where:

  • There is evidence of fraud, asset dissipation, or serious criminal conduct requiring urgent court intervention
  • One party is using mediation purely as a delaying tactic
  • There is a severe power imbalance that cannot be managed by the mediator
  • Urgent injunctive relief is needed to protect assets

In those cases, legal advice should be sought immediately and interim court orders may be necessary alongside — or before — any mediation attempt.

The Cost Argument Is Compelling

The difference in cost between mediation and commercial litigation is substantial. Costs of mediation are typically shared between the parties and are generally a fraction of what each side would spend on legal fees in a contested proceeding. When the future of a business is at stake, that distinction matters enormously.

For further context on the financial toll of adversarial dispute resolution, see our piece on the costs of going to court.

Ready to Resolve Your Shareholder Dispute?

Mediations Australia works with business owners, directors, and shareholders to resolve complex commercial disputes efficiently and confidentially. Our accredited mediators understand the commercial and legal landscape.

Book a consultation to discuss your situation and find out whether mediation is the right next step.

This article is general information only and does not constitute legal advice. The law applicable to your situation may differ depending on your jurisdiction and individual circumstances. If you are involved in a shareholder or partnership dispute, you should seek independent legal advice from a qualified Australian solicitor.

Mar 08

Commercial Lease Disputes: How Mediation Resolves Them

By Alternate Dispute Resolution, Litigation, Mediation

When a commercial lease dispute erupts between a landlord and tenant, the consequences can be serious. A retailer forced to close. A landlord watching rental income dry up. A business relationship that once worked perfectly now reduced to letters from solicitors and mounting legal bills.

For Australian business owners and property managers, commercial lease disputes are an increasingly common reality. Rising insolvencies — up 57% in the year to November 2024 according to CreditorWatch — have placed enormous pressure on lease obligations across the country. Melbourne’s office vacancy rate hit 19.6% in late 2024, the highest since 1995, while retail and industrial sectors face their own pressures. In this environment, disputes over rent, outgoings, and make-good obligations are inevitable.

The good news: the vast majority of commercial lease disputes can be resolved without setting foot in a courtroom. Mediation is not only faster and cheaper than litigation — in most Australian states, it is legally required before a dispute can proceed to a tribunal or court.

This article explains how commercial lease disputes arise, what the law requires, and why mediation is the most effective path to resolution.

What Is a Commercial Lease Dispute?

A commercial lease dispute is any disagreement between a landlord and tenant (or subtenant) over the terms, obligations, or performance of a commercial, retail, or industrial lease agreement.

These disputes can arise at any point during the lease term — at inception, during the tenancy, at renewal, or at the end of the lease when make-good obligations come into play.

The Most Common Causes of Commercial Lease Disputes in Australia

Rent Arrears and Rent Reviews

Unpaid rent is the most common trigger. But disputes also frequently arise over how rent reviews are conducted — particularly market rent reviews, where landlords and tenants may have very different views on what the market rate actually is. Ambiguous review clauses, informal arrangements, and disagreements over the timing and method of review can all lead to conflict.

Under most commercial and retail lease legislation, rent review mechanisms must be clearly specified. Disputes often arise when leases contain generic CPI review clauses but market conditions have diverged significantly from inflation, or where fixed percentage increases have become commercially unworkable. A mediator can help both parties reach a pragmatic rent adjustment without requiring a formal valuation dispute process.

Outgoings and Unexpected Charges

Commercial leases typically pass property-related expenses — rates, insurance, maintenance, management fees — to the tenant as “outgoings.” Disputes arise when outgoings are poorly disclosed upfront, exceed estimates, or include charges the tenant disputes as recoverable (such as capital works or land tax).

Under state-based retail leases legislation, landlords have specific disclosure obligations. Failure to comply can render parts of the lease unenforceable, which is itself a source of dispute.

Make-Good Obligations

At the end of a lease, tenants are typically required to restore the premises to their original condition — removing fit-out, repairing damage, and reinstating the space. The scope of this obligation is frequently disputed, particularly when lease terms are vague or the premises have changed significantly during the tenancy.

Make-good disputes are particularly amenable to mediation. Often, the real issue is not who is legally right but rather reaching a practical and cost-effective agreement about what work needs to be done and who will fund it. Landlords frequently prefer a cash settlement over insisting on costly reinstatement that may simply be demolished before the next fit-out anyway.

Repairs and Maintenance Responsibilities

Who is responsible for a leaking roof, a broken HVAC system, or structural damage? Lease agreements often draw a line between landlord and tenant responsibilities, but that line is frequently contested — especially in older buildings where the distinction between fair wear and tear and actual damage is blurred.

Early Termination and Lease Break Clauses

When a business fails or circumstances change, tenants sometimes need to exit a lease before its expiry. Disputes over whether a break clause applies, what notice is required, and what the financial consequences are can quickly become adversarial.

Lease Renewal and Option Disputes

Tenants who have invested in fit-out and built a customer base at a location have a strong interest in lease renewal. Disputes over whether an option was validly exercised, what terms apply on renewal, and whether the landlord is obliged to grant a new lease are common — and can have significant consequences for both parties.

What the Law Requires: State-by-State Overview

Australia’s approach to retail and commercial lease disputes is governed by state and territory legislation. In most jurisdictions, mediation is a mandatory step before a dispute can be escalated to a tribunal or court.

New South Wales

The Retail Leases Act 1994 (NSW) requires parties to retail lease disputes to apply to the NSW Small Business Commissioner for mediation before the matter can proceed to the NSW Civil and Administrative Tribunal (NCAT). The cost of mediation is typically shared equally between the parties. The Commissioner’s mediation service is available for disputes involving retail leases, including disputes about rent, outgoings, make-good, and lease renewal. If mediation fails, the Commissioner issues a certificate that must accompany any application to NCAT.

Victoria

The Retail Leases Act 2003 (Vic) requires retail lease disputes to be referred to the Victorian Small Business Commission (VSBC) before proceeding to VCAT. The VSBC offers free preliminary assistance and low-cost mediation — an accessible entry point for businesses of all sizes. The VSBC can also assist with disputes about the disclosure statement or the validity of the lease itself.

Queensland

The Retail Shop Leases Act 1994 (Qld) directs retail lease disputes through the Queensland Small Business Commissioner (QSBC), which provides mediation services. Disputes unresolved at mediation can proceed to QCAT, which can hear retail shop lease disputes up to $750,000 in value.

South Australia

South Australia’s Retail and Commercial Leases Act 1995 (SA) governs both retail and commercial leases in certain circumstances. The Small Business Commissioner SA provides mediation services for tenancy disputes before parties can access SACAT (the South Australian Civil and Administrative Tribunal).

Western Australia

The Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) and the Small Business Commissioner Act 2012 (WA) establish a mediation pathway for retail lease disputes in Western Australia. The Small Business Development Corporation provides free dispute resolution assistance.

Australian Capital Territory and Northern Territory

Similar frameworks operate in the ACT and NT. The Leases (Commercial and Retail) Act 2001 (ACT) requires parties to attempt mediation before proceeding to ACAT. Northern Territory tenancy disputes can be referred to the Tenancy Dispute Resolution Service.

For non-retail commercial leases — office, industrial, or mixed-use — mandatory mediation may not apply, but private mediation through a service like Mediations Australia remains the most practical and cost-effective first step.

Cost Comparison: Mediation vs Litigation

The financial case for mediation is compelling. Consider the realistic cost comparison for a mid-range commercial lease dispute:

Pathway Approximate Cost (each party) Timeframe
Mediation (Small Business Commissioner) $0–$500 2–8 weeks
Private mediation $1,500–$4,000 1–4 weeks
Tribunal hearing (NCAT/VCAT/QCAT) $5,000–$20,000+ 3–12 months
Supreme Court litigation $30,000–$150,000+ 1–4 years

These are indicative ranges only. Costs vary significantly depending on the complexity of the dispute, legal representation, and jurisdiction.

Even in a relatively straightforward dispute over unpaid rent of $30,000, the cost of litigating through a Supreme Court could easily exceed the value of the claim. Mediation, in contrast, can produce a binding agreement at a fraction of the cost — often within a few weeks.

Why Mediation Is the Right Choice for Commercial Lease Disputes

Cost

Commercial litigation is expensive. Legal fees, tribunal filing fees, and the time cost of drawn-out proceedings can quickly eclipse the value of the original dispute. A mediated outcome — even one that involves a rent reduction or a negotiated lease exit — is almost always cheaper than the alternative.

Speed

Tribunal and court proceedings for commercial lease matters can take months or years to resolve. Mediation can be arranged within days or weeks, and many disputes are resolved in a single session. For a business operating under the cloud of an unresolved dispute, speed matters enormously.

Confidentiality

Court proceedings create a public record. Mediation is entirely confidential — what is said in the room stays in the room. For businesses concerned about reputation, client relationships, or competitive sensitivity, this is a significant advantage.

Preservation of the Commercial Relationship

Not every lease dispute ends the tenancy. In many cases, both parties want to continue the relationship — just on terms that work. A mediator facilitates a conversation that courts cannot: one that acknowledges both parties’ legitimate interests and works toward a solution both can live with. The adversarial posturing of litigation makes this kind of resolution almost impossible.

Control Over the Outcome

When a dispute goes to a tribunal or court, the decision is made by someone with no understanding of your business, your circumstances, or your relationship with the other party. Mediation puts decision-making power back in the hands of the people who actually have to live with the outcome.

You can read more about how mediation works and what to expect from the process on our resources page.

What Happens in a Commercial Lease Mediation Session?

A typical commercial lease mediation follows this structure:

1. Pre-mediation preparation
Both parties are asked to prepare a brief summary of their position and the key issues in dispute. Relevant documents — the lease agreement, correspondence, financial records — are gathered. You can review our guide on preparing for mediation for practical tips.

2. Opening statements
Each party has an opportunity to explain their perspective without interruption. The mediator listens, asks clarifying questions, and begins to map the issues.

3. Joint and private sessions
The mediator may facilitate joint discussion between the parties, or conduct separate private sessions (“shuttle mediation”) where confidential conversations take place with each party. This is particularly useful where the relationship has broken down or emotions are running high. Learn more about shuttle mediation and whether it might suit your situation.

4. Negotiation and agreement
The mediator helps the parties explore options, test proposals, and move toward agreement. When an agreement is reached, it is documented and signed by both parties — creating an enforceable record of the resolution.

5. If mediation is unsuccessful
If the parties cannot reach agreement, the mediator (or the relevant Small Business Commissioner) issues a certificate confirming that mediation has been attempted. This certificate is typically required to proceed to a tribunal or court.

Common Mistakes in Commercial Lease Disputes

Understanding what not to do is just as important as knowing the process. Here are the most common mistakes parties make when navigating commercial lease disputes:

Escalating too early

Many landlords issue formal breach notices or termination notices before attempting any direct conversation. This immediately entrenches the dispute and often triggers defensive responses from tenants. A phone call or meeting — or an early referral to mediation — can resolve many issues before they harden into formal disputes.

Ignoring disclosure obligations

Landlords who fail to meet their disclosure obligations under the relevant retail leases legislation may find that their ability to enforce certain lease terms is compromised. Before taking action in a dispute, it is important to understand whether your own conduct under the lease has been technically compliant.

Treating the dispute as purely legal

Commercial lease disputes are business disputes. The best outcomes account for the practical and commercial realities facing both parties — the landlord’s need for cash flow and an occupied tenancy, the tenant’s need for a viable operating cost base. Focusing purely on legal rights often produces pyrrhic victories.

Not preparing adequately for mediation

Arriving at mediation without a clear understanding of your own legal position, the documents supporting your case, and your desired outcome wastes the process. Good preparation — including, where appropriate, obtaining legal advice before the session — dramatically improves the prospects of resolution.

Delaying too long

The longer a dispute festers, the more expensive it becomes and the more entrenched the parties’ positions become. Early mediation — even before formal legal action is threatened — is almost always more productive than mediation that occurs only after litigation has been filed.

What Happens After Mediation Fails?

In the minority of cases where mediation does not produce a resolution, the parties are not left without options. The pathway depends on the jurisdiction and the nature of the lease:

  • Retail leases: The mediating body (Small Business Commissioner or equivalent) will issue a certificate of failed mediation, which is required before proceeding to the relevant tribunal.
  • Non-retail commercial leases: The parties may pursue their dispute through the relevant state Supreme Court or District Court, depending on the value of the claim. In NSW, the District Court has jurisdiction up to $750,000; above that, the Supreme Court.
  • Urgent matters: Where a tenant faces imminent eviction or a landlord faces immediate loss, urgent injunctive relief can be sought from a court even before or during a mediation process.

It is also worth noting that failed mediation does not foreclose the possibility of later settlement. Many commercial lease disputes that do not resolve at mediation are subsequently settled through solicitor-to-solicitor negotiation, often on the eve of a tribunal hearing. The mediation process, even when it does not produce an agreement on the day, typically narrows the issues and brings the parties closer together.

Tips for Preparing for Commercial Lease Mediation

  • Gather your documents early. Bring the full lease agreement, all correspondence, financial records relevant to the dispute, and any notices or demands issued.
  • Know your bottom line. Before you enter mediation, be clear on what outcome you need and what you are prepared to accept.
  • Focus on interests, not positions. The most productive mediations happen when parties explain what they actually need, not just what they are demanding. A landlord may need cash flow certainty; a tenant may need reduced outgoings in the short term. Understanding each other’s underlying interests opens up solutions that pure positional bargaining cannot.
  • Be prepared to compromise. Mediation is not a win-lose process. Both parties will likely move from their opening positions. That is not weakness — it is pragmatism.
  • Consider whether legal advice is appropriate. While you do not need a lawyer in mediation, it can be helpful to obtain independent legal advice before the session to understand your rights and obligations under the lease and the relevant legislation.

Key Takeaways

  • Commercial lease disputes are increasingly common in Australia, driven by economic pressure, rising insolvencies, and complex lease obligations
  • The most frequent causes are rent arrears, outgoings disputes, make-good obligations, and repair responsibilities
  • In most Australian states, mediation is legally required before a retail lease dispute can proceed to a tribunal or court
  • The cost of mediation is a fraction of litigation — even in relatively modest disputes
  • Mediation is faster, cheaper, confidential, and more likely to preserve the commercial relationship than litigation
  • Both landlords and tenants benefit from early engagement with mediation rather than allowing disputes to escalate

Resolve Your Commercial Lease Dispute Without Going to Court

Whether you are a landlord dealing with a tenant in arrears, a tenant disputing excessive outgoings, or either party facing a make-good claim at the end of a lease, mediation offers a faster, cheaper, and less damaging path to resolution.

At Mediations Australia, our accredited mediators have extensive experience with commercial lease disputes across all Australian states and territories. We can arrange mediation quickly and help both parties reach a durable, enforceable agreement.

Book a consultation with Mediations Australia →

This article is for general information purposes only and does not constitute legal advice. For personalised guidance regarding your specific situation, please consult a qualified legal professional or accredited mediator.

Sep 23
What Happens to business in Divorce?

What Happens to Business in Divorce: Strategic Protection Guide 2024

By Family Law, Alternate Dispute Resolution, Mediation

What Happens to Business in Divorce: Mediation vs Court Battle

When a couple separates or divorces, it is usually always required to distribute their assets between them.

There is one legal concept that applies to all types of assets, regardless of their value: what is “fair and equitable” under the circumstances. When it comes to protecting more complicated assets, like a business, after a divorce, there are several critical actions you should take. An in-depth look at the process of divorcing your business is provided in this article. But one thing you should have in the back of your mind when ready is that litigation does not need to be your default position. Increasingly, mediation and in particular arbitration are being used to resolve property disputes often regarding businesses.

When a family business is divided following a divorce or separation, how are the assets divided?

When a couple is contemplating a separation or divorce and one or both parties operate a business, concerns about the ownership of the business, regardless of the type of entity it is, will inevitably surface. The dissolution of a relationship poses a risk to everyone associated in a business, from the couple themselves to other business partners and anybody else who has a financial interest in the company. You can count on it that all involved in the business will become very jittery and nervous. As a result, considering the implications of a family law action on business ownership should be normal corporate risk management for every organisation. This is especially true in the case of a family-owned business. So, an important take-home message for all business owners is to ensure that marital relationship breakdowns are entertained within the risk management of the business.

When a relationship begins to deteriorate, it is common for the business to become the centrepiece or put bluntly, the battleground of the dispute. An attempt to divert assets or suppress information that is essential to correctly evaluate the business are likely to form some of the accusations that will be passed around all who have an interest. To avoid complications, it is necessary that all parties move with care and get legal guidance as soon as feasible. These things have a real tendency to escalate very, very quickly, so save yourself the pain and get prompt legal advice from family lawyers with strong expertise in property settlement matters that involve businesses. It’s a bespoke, expert area.

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Is this something that happens to de facto couples?

In the case of married couples, the regulations for property distribution and company ownership are nearly identical to those for de facto couples. Under the Family Law Act 1975, any commercial interests in a de facto relationship can be deemed assets for the purposes of dividing the marital estate.

Individual cases are evaluated on the basis of the rules that establish a de facto relationship, which are individual to each situation. As a general rule, however, if you are in a true domestic connection with someone, there is the possibility that the relationship will be deemed a de facto one. You should be aware that even if you have been in a long-term relationship with your partner but live apart from him or her, you may still be regarded to be in a de facto relationship. If you have any concerns regarding the current condition of your relationship, you should get legal assistance from a family lawyer or one of our team at Mediations Australia who can assist with the determination.

What happens to a company in the event of a divorce?

It is considered a marital asset for the purposes of division when one or both spouses operate a business. There are, however, a few notable exceptions to this general rule of thumb. First and foremost, if the couple entered into an enforceable agreement (such as a prenuptial agreement), the business may not be subject to a property settlement when the couple divorce or separates.

  • Marital assets are distributed upon the application of a four-step formula. These steps define what constitutes a reasonable and equitable allocation of:
  • Determine the value of all assets and liabilities owned by both spouses;
  • evaluate the financial and non-financial contributions made by each spouse;
  • take into consideration the future needs of each spouse;
  • and determine what division of property is just and equitable in all of the circumstances of the marriage.

In this procedure, it is vital to highlight that Step 2 takes into consideration a variety of elements, including the non-financial contributions that each person contributes to the marriage (such as parenting and maintaining a home). This implies that even if a spouse did not actively contribute to or support the business, that spouse may still be eligible to receive a portion of the business in the event of separation or divorce.

The marital asset test, as described above, determines what percentage of the property pool one spouse should be entitled to receive from the other. For example, the distribution may be 50/50 or 60/40, or 70/30 depending significantly on the contributions made by each partner and the requirements of the future. There is no hard and fast rule that applies to who gets what and this is particularly the case when there are complex assets involved, like a business.

In the event of a divorce, who gets the business?

This is a tricky question and obviously differs from case to case.

When a business is involved in a property pool, there are a variety of different property settlement outcomes that might occur. The following are the most often encountered outcomes:

  • If a business is sold to a third party, the proceeds are considered as cash in the property pool. If one spouse arranges for the buyout of the other spouse’s interest in the business, the proceeds are treated as cash in the property pool.
  • Ex-spouses retain ownership of their business and make the necessary modifications to its operations so that their professional connection may continue after the end of their personal relationship;
  • the business is divided, and each spouse receives a portion of the business.

The parties to a divorce may determine that any of the possibilities listed above is the best option for them based on their individual circumstances. Some options, on the other hand, are more difficult than others. For example, if a former spouse continues to work together in the same business, this might be a source of anxiety in the long run. A common norm of family law is that the split of assets following a divorce should be final, and this is true in all cases.

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Is it possible to divide a business during a divorce?

Some divorcing spouses decide to divide their business into two separate and functioning organisations. For example, if a business has two functioning sites, each spouse can purchase a 50% interest in one of the locations.

As a result, the parties should take into consideration the implications of dividing the business. Will the individual elements of the company or whatever structure it is, be able to survive if they don’t work together? Has the value of each component been determined with precision? So, what kind of ownership structure is necessary to ensure that each partner is legally free of the other’s obligations?

The process through which the family court determines its judgement

Whenever you are unable to achieve a private agreement about the division of marital assets or the worth of a business, you can ask the Federal Circuit and Family Court of Australia to make this judgement on your behalf, if you live in Australia. If the parties are unable to come to an agreement on the value of a business, the Court will almost probably order an independent valuation of the firm to be conducted. The Court will utilise this assessment to determine each party’s claims in the event of a fair split of assets between the parties.

It is also likely that the Court will be reluctant to issue an order involving the continuation of a former couple’s financial implications. If it becomes essential to sell the business in order to achieve a fair and equitable split of property, the Court will order that it be sold. But if the Court is able to divide other marital assets in order to accomplish an equitable distribution of property, this will not be necessary. For example, one spouse may retain ownership of a profitable business while giving up all stake in the family home or investment properties or whatever the case may be.

How do you determine the worth of a business in the event of a divorce?

Reaching an agreement on the valuation of a business may be a significant stumbling block in the process of finalising a property settlement.

An asset such as a home may be reasonably simply evaluated using a market evaluation; on the other hand, evaluating a business is fundamentally more challenging. If a divorcing couple wants to avoid going to court, reaching an agreement on the worth of their business is crucial, regardless of how tough the process may be.

In order to ascertain the genuine worth of a firm, it is normally required to retain the services of a business valuation specialist. A company appraisal performed by an impartial third party might help to clarify the property settlement process. The vast majority of experts that perform these services are certified in business valuation (ABV) and/or are Certified Valuation Analysts (CVA), Accredited Senior Appraisers (ASA), or Certified Business Appraisers (CBA), among other designations (CBA).

It is essential that the independent appraiser produce an accurate evaluation of the business value that is free of prejudice or favouritism. The worth of a business is determined by a variety of criteria, some of which are complex and need a detailed examination of the company’s financial records. The date of the property settlement or court hearing, not the date of the couple’s separation, is used to determine the worth of the business.

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In most cases, the independent appraisal differs from the anticipated sale price on the open market in some way. Instead, the valuation takes into account the advantages that the owner would obtain if they were to continue to have an interest or play a part in the company. For example, if one spouse will be able to continue in the capacity of CEO, this is an extra benefit that should be taken into account when determining the value of a firm.

Based on the size and kind of business, numerous ways to determine a business valuation might be used, however, the following factors are likely to be taken into consideration by the valuer:

  • Considering the consistency of the profits as well as the likelihood of future costs, business income is calculated.
  • Assets, liquid assets, and liabilities pertaining to a business
  • Whether or whether the company has ceased operations or is still in operation;
  • Cash flow projections for the future;
  • Estimates of the earnings that would be made if the firm was sold
  • What type of business is being classified (eg is it a sole trader, partnership, listed company, private business, a company-held business, or trust arrangement).

It is crucial to understand that even if a business has minimal monetary worth on the open market, it is nonetheless taken into account during the course of a real estate transaction. A business that has the potential to provide an income stream symbolises a future financial resource that the spouse will have access to.

What Happens to Business in Divorce: Preventive Steps You Can Take Now

If you are in a relationship and also run a business, we recommend that you consult with an expert Family Lawyer about your options. If you are in a relationship and thinking about launching a business, this is much more vital to consider. This is an excellent moment to consider how you might arrange your company in order to safeguard it in the case of a future relationship split.

It is possible that you and your partner will want to enter into a legally enforceable financial agreement so that you and your partner can agree on how assets will be shared in the case of divorce. This document can be signed either before or during your marriage or romantic connection.

Additionally, you can engage into an agreement with the other owners of your company. You can include a provision in that agreement stating that any unmarried owners must execute a prenuptial agreement before they get married. It is possible that the prenuptial agreement will stipulate that the prospective spouse agrees to waive any and all rights in the business.

Alternatively, you can arrange for a transfer of shares in the case of a divorce between business owners, ensuring that ownership of the company is maintained at the time of the divorce. Understanding what happens to business in divorce, many owners choose to protect their interests by placing the business in a trust, effectively separating it from other marital assets.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Sydney, Perth, Adelaide, Melbourne,Gold Coast and all other locations in Australia. We also do international family law matters.

Getting legal advice early is the most important thing to do.

Sadly people often wait too long to get legal advice. Take advantage of our FREE consultation with a family law expert.
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Jan 20
cost of divorce in Australia - Mediation Australia

The Cost of Divorce in Australia

By Alternate Dispute Resolution, Family Law, Family Law Disputes, Mediation

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The Cost of Divorce in Australia

The Cost of Divorce in Australia doesn’t have to be as high as you may think. It’s likely that you have heard of the horror stories of family lawyers who have charged so much that there wasn’t much left after they took out their fees. While those stories are sometimes true, the cost of divorce in Australia doesn’t necessarily have to be expensive.

But first things first. Are you looking for information about the actual cost to file a divorce application as opposed to the cost to resolve a family law dispute?

If you are looking for information relating to the former, at Mediations Australia, our Sydney, Adelaide, Melbourne, Canberra, Perth, family lawyers can assist you in filing that application for divorce. For more information in that regard, we recommend you click this link.

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Initial Divorce Application Costs

The basic cost of filing for divorce in Australia starts with the application fee. As of 2024, the Federal Circuit and Family Court of Australia charges:

  • Standard application fee: $1,020
  • Reduced application fee: $350 (for eligible concession card holders)
  • Joint application fee: Same costs apply
  • Second application fee: Full fee applies

Application for Divorce Process

The divorce application process involves several steps:

  1. Complete the application form
  2. File required documentation
  3. Serve documents on your spouse (if sole application)
  4. Attend hearing (if required)
  5. Receive divorce order

Understanding Total Divorce Costs

The total cost of divorce in Australia typically includes:

  • Court filing fees
  • Legal representation costs
  • Mediation expenses
  • Property settlement fees
  • Document preparation charges

Factors Affecting Overall Costs:

  • Complexity of your situation
  • Level of agreement between parties
  • Choice of dispute resolution method
  • Legal representation requirements
  • State/territory variations

Cost of Divorce by State/Territory

Cost of Divorce in NSW

  • Average lawyer fees: $400-$700 per hour
  • Traditional litigation costs: Up to $200,000
  • Mediation through Mediations Australia: Under $4,000
  • Court filing fees: Standard federal court costs
  • Property settlement: Based on asset pool

In NSW, while traditional legal fees can escalate quickly, our Sydney office provides cost-effective mediation solutions that have helped hundreds of couples reach amicable agreements.

Cost of Divorce in Queensland

  • Lawyer hourly rates: $350-$650
  • Court litigation timeframe: 2-3 years average
  • Mediation costs: $3,000 (shared between parties)
  • Fast resolution timeframe: Often within days
  • Property settlement: Asset-dependent

Our Brisbane mediators have achieved a 90% success rate in resolving Queensland divorce matters within days rather than years.

Cost of Divorce in SA

  • Traditional legal fees: Up to $175,000 per party
  • Mediation solution: Under $4,000 total
  • Court filing fees: Standard federal costs
  • Average resolution time: 2-4 weeks with mediation
  • Settlement costs: Varies by complexity

Our Adelaide team specializes in rapid, cost-effective resolutions that save South Australian couples significant legal fees.

Cost of Divorce in ACT

  • Average lawyer costs: $350-$600 per hour
  • Full litigation costs: $150,000+ per party
  • Mediation total cost: $3,000 plus GST
  • Property settlement: Asset pool dependent
  • Document preparation: Included in mediation fee

From our Canberra office, we’ve helped numerous ACT couples avoid costly court battles through our structured mediation process.

Cost of Divorce in NT

  • Traditional legal pathway: $200,000+ total
  • Mediation alternative: Under $4,000
  • Court filing fees: Standard federal rates
  • Resolution timeframe: Days vs years
  • Settlement services: Comprehensive support

Our Darwin mediators provide Northern Territory residents with significant cost savings through our proven mediation process.

Cost-Saving Alternatives

Mediation Benefits

  • Average cost: $3,000
  • Faster resolution
  • Less confrontational
  • Higher success rates
  • Legally binding outcomes

Arbitration Advantages

  • More structured than mediation
  • Less expensive than court
  • Faster than litigation
  • Confidential process
  • Binding decisions

Hidden Costs to Consider

Emotional Costs

  • Personal stress
  • Family impact
  • Work disruption
  • Relationship strain
  • Future implications

Financial Impacts

  • Asset division costs
  • Property valuation fees
  • Superannuation splitting
  • Tax implications
  • Future financial planning

Professional Recommendations

To minimize divorce costs:

  1. Consider mediation first
  2. Maintain open communication
  3. Gather documentation early
  4. Be prepared for negotiations
  5. Consider cost-benefit of decisions

Tips for Cost Management

  • Choose the right dispute resolution method
  • Be organized with documentation
  • Communicate clearly with legal team
  • Consider unbundled legal services
  • Use mediation where possible

The Cost to Resolve Your Family Law Dispute

If you’re still here, then you’re wanting to more broadly understand what it actually costs to resolve your family law dispute.  In this context, you may have separated and had disagreements with your former partner about a property settlement, parenting matters, child support, spousal maintenance, and possibly other issues.

In assessing the costs of divorce in this context, there are many factors you need to consider. At the outset, the first of which is that family lawyers aren’t cheap. The average cost per hour for a family lawyer in Australia is approximately $400 and this can climb to $700, depending upon the experience and expertise of the relevant lawyer. It’s not hard to see that if your family law matter is complex or you or your former partner are not willing to resolve it without going to court (litigation), then it’s not hard to see that the collective family law fees may be hundreds of thousands of dollars. Remember, the average time it takes to get a family law matter to Court in Australia is approximately 3.5 years. That’s a lot of legal fees.

That said, the cost of divorce in Australia doesn’t have to be expensive. You and your former partner can significantly reduce your legal fees by isolating the real issues causing the dispute and each of you has a willingness or preparedness to resolve the dispute through mediation.

The Importance of Looking at the Alternatives

Mediation is a mandatory step in all family law matters and to best reduce the cost of divorce is to resolve the issue at this juncture. The cost of mediation is approximately $3,000. It’s not hard to see why you and your former partner should be considering mediation over litigation.

That said, there are of course other alternatives to mediation. For example, if your family law dispute is complex, but you still want to have lawyers engaged in the process, arbitration may be a useful alternative.  In this case, like a court, your lawyers prepare the documents and present their case to an arbitrator, who acts as a family law judge. The arbitrator makes his or her decision, and their findings are legally-binding.

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Arbitration as a Litigation Alternative

Arbitration is a dispute resolution process that is conducted by a third party who does not have any connection to the parties involved in the dispute.

The arbitration process has been around for centuries and it has been used in many different contexts. It was initially used to settle disputes between merchants and traders, but today it is regularly used to resolve family law disputes.

Arbitration is often more cost-effective than litigation because there are no court costs and the arbitrator sets their own fee. At Mediations Australia, you can book a free, initial consultation to learn more about our arbitration fees.

The advantages of arbitration are that it is often less expensive than litigation; it can be completed more quickly; and it does not require public proceedings, which means that confidentiality can be maintained.

However, some disadvantages are that there are no appeals courts for arbitration decisions; there may not be as many procedural protections for the parties involved, and there may not be as much opportunity for discovery or questioning witnesses.

That said, in the context of minimising the costs of divorce, it is an excellent choice and is significantly cheaper than litigation.

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The Other Hidden Costs of Litigation

Family law disputes handled through litigation is a contact sport. In other words, it’s a brutal, demanding, fatiguing way to resolve a dispute about parenting, property or another issue. The impact of a family relationship breakdown has a massive impact on all involved, let alone considering the weight that litigation has on those strained relationships.

At Mediations Australia, we highly recommend that you consider your dispute primarily through this lens and get in and out of your dispute as quickly as possible.

Frequently Asked Questions

Is Everything Split 50/50 in a Divorce Australia?

No, property division in Australian divorces isn’t automatically 50/50. The Family Law Act requires a ‘just and equitable’ division based on several factors:

  • Length of relationship
  • Financial contributions
  • Non-financial contributions (like homemaking and childcare)
  • Future needs and earning capacity
  • Care of children

At Mediations Australia, we help couples reach fair agreements considering these factors, often achieving resolution without costly court intervention.

Who Pays for Divorce in Australia?

The costs associated with divorce include:

  • Application fee ($1,020 or $350 with concession)
  • Legal fees if required
  • Mediation costs (approximately $3,000 total)

For joint applications, couples often share the court filing fee. At Mediations Australia, our mediation fees are typically split between parties and included in the property pool calculations, making it a cost-effective solution compared to traditional litigation which can cost $200,000+ per party.

What is My Wife Entitled to in a Divorce in Australia?

Entitlements aren’t gender-specific in Australian family law. Both parties have rights to:

  • Fair share of matrimonial assets
  • Superannuation splitting
  • Ongoing child support if applicable
  • Potential spousal maintenance

Through our mediation process, we help couples reach agreements that consider:

  • Individual contributions to the relationship
  • Future needs and circumstances
  • Parenting arrangements
  • Financial capacity
  • Health and age factors

Do I Have to Support My Wife After Divorce in Australia?

Spousal maintenance isn’t automatic but may be required if:

  • One party can’t adequately support themselves
  • The other party has the capacity to provide support
  • It’s reasonable given the circumstances

Our mediators help couples negotiate fair maintenance arrangements, considering:

  • Income earning capacity
  • Reasonable financial needs
  • Effect of relationship on earning capacity
  • Care of children
  • Standard of living

Who Loses the Most in a Divorce?

From our extensive experience in family law mediation, the biggest losses often come from:

  • Prolonged legal battles
  • Emotional strain
  • Damaged relationships
  • Excessive legal fees
  • Time lost to litigation

This is why we advocate for mediation, which:

  • Costs under $4,000 total
  • Resolves matters in days, not years
  • Preserves relationships
  • Reduces emotional stress
  • Achieves 90% success rate

How Long Does Divorce Take in Australia?

The timeline varies:

  • Divorce application: 4 months minimum after filing
  • Property settlement: No set timeline, but best resolved quickly

Through Mediations Australia’s services:

  • Mediation can be arranged within weeks
  • Most matters resolve in 1-2 sessions
  • Property settlements often complete within months
  • Significant time savings versus litigation (which averages 3 years)

What Should You Do Now?

The best way forward in all family law matters is to seek professional advice. Unfortunately, many people in this predicament can delay getting such advice which may worsen the dispute. At Mediations Australia, we offer a free, initial consultation on all matters relating to the cost of divorce in Australia.  Talk to one of our Sunshine Coast Mediation team today.

Getting legal advice early is the most important thing to do.

Sadly people often wait too long to get legal advice. Take advantage of our FREE consultation with a family law expert.
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Oct 29
What’s the Difference Between a De Facto Relationship and Marriage?

What’s the Difference Between a De Facto Relationship and Marriage?

By Alternate Dispute Resolution, Family Law, Family Law Disputes

The De facto Relationship: Changing Face of Australian Families

Australian society has undergone significant change in many ways in recent decades.

Not only do we look a lot more diverse than we once did, but our definition of what constitutes a family is also very different to what we once understood by that term.

That change includes the rise of de facto relationships in preference to marriage. According to the latest Census, one in six Australians aged 15 or over now lives in a de facto relationship.

The significance of this change has been incrementally reflected in the law. But for some relatively minor differences, the rights and obligations of people in de facto relationships – whether man and woman or same-sex – are nowadays all but the same as married couples.

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How are de facto couples recognised by law

A de facto relationship is defined under section 44A of the Family Law Act 1975 as a relationship between two people, including same-sex people, who are not otherwise legally married or related by family and with regard to all the circumstances of their relationship, live together on a ‘genuine’ domestic basis.

This definition, however, is not applied uniformly across government bureaucracy or even in different pieces of government legislation.

Courts employ a four-point threshold test to evaluate a relationship as de facto:

  • That the parties have been in the relationship for at least 2 years;
  • that there is a child from the relationship;
  • that the relationship is, or was, registered under a prescribed law of a State or Territory;
  • that in assessing property or custodial claims resulting from a breakdown of the relationship, it is recognised that significant contributions were made by one party and the failure to issue an order would result in serious injustice.

Once a de facto relationship is recognised, the rights of parties closely resemble those of married couples. If one partner dies, for example, the other can:

  • Be entitled to a share of his or her estate;
  • receive funds under workers’ compensation, if the partner died at work;
  • access the partner’s superannuation;
  • claim social security.

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How courts approach de facto relationships

Like married couples, the need for the court to intervene to decide disputes in relation to children and/or financial settlements also exists when a de facto relationship ends.

While married people can show a marriage certificate as proof of their relationship, de facto relationships can be more difficult to establish. Commonly, a party to the relationship with more substantial financial resources will deny the relationship qualified as a de facto one in order to avoid any split of assets when the relationship ends.

In addition to the threshold factors listed above, the court will assess the relationship on the basis of a number of different factors, not all of which need to be present for the relationship to exist.

It should be noted that a de facto relationship can be established even when one party is legally married to someone else, or also in a de facto relationship with another person.

Other factors the court will take into account include:

  • Whether a sexual relationship existed between the parties;
  • the extent and nature of shared living arrangements;
  • the parties’ financial dependence on each other;
  • the mutual commitment of the couple to a shared life;
  • whether the relationship was recognised by others, such as family and friends, as de facto, and the couple presented themselves in that way;
  • ownership, use and acquisition of the parties’ property.

Evidence may be required to prove or disprove any of the factors listed.

Alternative dispute resolution

As it is for married couples, the Family Law Act mandates mediation, or alternative dispute resolution, before making an application to the court for orders.

Mediation offers a cheaper, faster and generally less stressful means for couples to resolve areas of disagreement and dispute between them.

An accredited mediator facilitates this session, where both parties are able to put their case before a process of negotiations takes place to narrow discord with the aim of finding a workable solution both parties can abide by.

Any agreement reached between the parties can then be presented to the court for consent orders to formalise its terms.

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Are there any other differences between marriage and de facto?

The other key differences between marriage and de facto relationships apply to the end of the union.

Those seeking a divorce in Australia must meet certain conditions, including that they are Australian citizens; have lived in Australia for the past 12 months and intend to continue living in Australia; have been separated for at least 12 months, and; if married for under two years, the parties need to have filed a counselling certificate after attending counselling.

Divorcees must then begin property or spousal maintenance proceedings within 12 months of becoming divorced unless an extension is granted.

By contrast, de facto couples do not need to do anything when the relationship ends. If one or both parties wish to go to court to get a property settlement, however, proceedings must be commenced within two years of the relationship ending.

Conclusion

While de facto relationships are treated similarly to marriage, some differences remain in how such a relationship is defined. Centrelink, for instance, consider a couple to be in a de facto relationship from the moment they start living together, while Australia’s migration law insists parties have been living together for a period of 12 months or longer.

Whether you’re married or in a de facto relationship, the expertise of family law legal professionals can be invaluable in helping you assess your options when a relationship breaks down.

If you would like to further discuss any of the issues raised in this article, contact our expert Sydney, Melbourne, Perth, Brisbane, Sunshine Coast Mediation team today. Mediations Australia exists to help people stay out of court and resolve their issues in a faster, cheaper and more effective way.

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Jun 11
Nothing Alternate About Alternate Dispute Resolution (ADR)

Nothing Alternate About Alternate Dispute Resolution (ADR)

By Alternate Dispute Resolution

Increasingly throughout the world alternate dispute resolution, be it through mediation, collaborative law or arbitration is becoming the norm, as courts more and more divert people in dispute away from litigation.

What’s Wrong with Litigation?

Litigation is lengthy, expensive, and emotional rollercoaster and rarely gives the results that those caught in it expected. Both courts and governments throughout the world are making it more difficult to use the court system to resolve disputes and are trending towards punctuating alternate dispute resolution steps repetitiously along the way to force people into an agreement as opposed to leaving a judicial officer to do it.

Is Alternative Dispute Resolution Expensive?

ADR is a very cheap alternative to litigation. For example, in family law, expect to pay your family lawyer between $350 – $700 an hour, with most family law litigation lasting at least 2 years with costs above $50,000, whereas mediation will cost in the vicinity of $3,000 ($1,500 for each person). In business disputes, the Queensland Government report that those who successfully resolve their business dispute with ADR, save up to 95% of costs if they went to court.

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What are the Types of Alternate Dispute Resolution

In the context of family law, there are essentially 3 types of Alternate Dispute Resolution.

Negotiation

Negotiation is an informal means of resolving a dispute, where you and your ex-partner communicate directly with each other to try and reach an agreement. In family law mediation, these negotiations can be conducted face to face, over the phone or by letter or email, with or without the assistance of a third party (family lawyer etc).

Collaborative Law

A collaborative law approach is predicated on an agreement by you and your ex-partner that you will not use litigation to resolve your family law dispute. Collaborative law leverages this agreement to allow you to work collaboratively with your lawyers and others if need be to work towards a resolution.

The three principles of a collaborative approach are:

  • a pledge not to go to court;
  • an honest exchange of information, including open disclosure of all relevant documents and details; and
  • a solution through negotiation in good faith, that takes into account the parties’ priorities and where applicable, those of their children.

Mediation

Mediation can work in a number of ways. It can be instigated by your family lawyer upon your request or alternatively, directly through a mediation agency, like Mediations Australia. The process in the case of the former will initially be driven by your family lawyer as they work with you to identify the issues in dispute, assist you in identifying your bottom-line and help you prepare position statements. In the latter case, you through the assistance of the Best mediator will define the issues and identify on what basis you’re prepared to settle. Once these preliminary steps have been undertaken the mediation will be convened and the mediator acts as a neutral party assisting you and your ex-partner to agree, then formalise that agreement.

Arbitration

Arbitration is an ADR method and out of all ADR types is the one of which that is most akin to a court process. You and your ex-partner will usually have lawyers who will formally submit relevant evidence etc to best inform the arbitrator to ultimately decide o your matter.

Read more about family law arbitration

What Should I Do Next if Considering Alternate Dispute Resolution?

For more information or if we can assist in answering any questions you may have, simply reach out to one of our Perth, Melbourne, Brisbane mediation and Sydney mediation team members at Mediations Australia.

Getting legal advice early is the most important thing to do.

Sadly people often wait too long to get legal advice. Take advantage of our FREE consultation with a family law expert.
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