On the 7th March 2012, Chief Judge Thackray of the Family Court of Western Australia issued a memorandum which will have an automatic effect from 9 April 2012 on all matters involving financial cases where the parties are both legally represented.

The Chief Judge has confirmed with effect from the 9 April 2012 any matter involving a financial case where both parties are legally represented will not be allocated a Conciliation Conference (meaning the matter will not proceed along the normal Court process) until the parties have either engaged in or undertaken private mediation style conferencing (“MDS”) or provided to the Court an appropriate explanation as to why they such mediation cannot be undertaken.  There is an expectation that the reasons for not attending  private MDS would be very limited in most circumstances.

The cost of the Practitioner conducting the private MDS will range between $3,000 to $4,000 plus GST which would include time spent reading the brief provided by each party, undertaking an intake assessment and then conducting the mediation over a working day.  Any extra time would be charged at and hour rate of somewhere between $350.00 to $450.00 per hour plus GST.  In most circumstances the cost of the MDS would be borne equally by the parties unless some other financial arrangement is agreed.  In addition to these costs would be the cost of the parties’ instructed lawyers charged in accordance with their individual retainers.

Private MDS has a demonstrated success rate of up to 80% for both complete and partial settlements.  At worst even if private MDS does not lead to an ultimate resolution it will always serve to limit issues for the final hearing which will have the effect of reducing overall legal costs.

When one considers that a full litigated financial matter in the Family Court is going to cost no less than $60,000 to $70,000 plus GST per party for legal, counsel and valuation fees – the possibility of resolving a financial  family dispute in MDS for around $10,000 per party is extremely financially attractive.

The Chief Judge has made it clear that practitioners and clients who have not considered or become involved in private MDS can expect the hearing to be adjourned without the listing of a Conciliation Conference so the parties can arrange private MDS.

If private MDS has occurred, and the parties have not reached a complete settlement or only a partial settlement practitioners will be able to dispense with the requirement that the parties attend upon a Registrar for a Conciliation Conference and therefore bypass that process which on current estimates will provide them with a time priority of some eight months over and above other cases in this respect.

Those parties and/or practitioners who refuse to engage in private MDS without a reasonable or appropriate explanation may face serious cost consequences in the Family Court.

MDS is an initiative of the Family Law Practitioners Association of Western Australia and AIFLAM (Australian Entity of Family Law and Family Lawyers Mediators) which enables senior family law practitioners to be trained to conduct and participate in private mediation style conferencing in financial cases where both parties are represented.

Following the training, there are some 36 family law practitioners who are prepared to conduct mediation style conferences.

Jeremy Culshaw of Culshaw Miller Lawyers is one of those 36 practitioners who are able to engage in and conduct mediation style conferencing.

If you require further information concerning this matter, please do not hesitate to contact Jeremy Culshaw of this office.