In January 2016, the Family Court of Australia introduced an amendment to legislation allowing documents to be delivered by post as opposed to in-person.  In a situation where a subpoena of document is actioned, the new rules state that such subpoenaed material should be released to all parties for inspection and copying – the exception being sensitive documents like child welfare records, criminal records, and police and medical records which can be released for inspection only.

While this amendment has eased the process of issuing a subpoena and subsequent perusal of subpoenaed documents, the fact remains that issuing a subpoena and following up on it requires a considerable investment of time, effort and money. Also, nobody likes being served a subpoena.  It is essentially a command – an act of aggression, and issuing one to an opposing party could be perceived as an unwillingness to cooperate, a lack of trust and a sure-fire way to cause further ill-will between the two sides.

Before embarking down the road of issuing a subpoena, my question to litigants is: Is it worth it and have you considered mediation as an alternative to litigation?

Subpoenas are expensive and aggressive.  Mediation fosters trust and cooperation

A subpoena is almost always a costly and complicated process. In requesting the subpoena, you are obligated to pay the filing fees. As per the new amendment, the subpoena can be sent by ordinary post, but if you choose to deliver it via a process server, you will incur sizeable charges. Then, continuing with the case, you’ll also incur legal fees for services extended by your lawyer. In comparison, mediation is a much simpler, more affordable and more effective process where the mediation agency will assume the responsibility of contacting the other party and arranging for mediation during which documents can also be presented willingly.

The process of getting a subpoena may be overwhelming for both the litigant and the other party as it can cause significant stress. Like any other legal action, issuing subpoenas displays a lack of trust in the person receiving them, which may lead to them adopting a confrontational attitude. It destroys goodwill between the two sides hindering the resolution process further. Also, as a litigant, submitting the subpoena and receiving documents in response to it is a prolonged process that could stretch for an extended period.

Mediation, on the other hand, requires both sides on board to manage the conflict. It establishes a collaborative atmosphere where the two sides work through their differences to achieve joint resolution. All necessary documents would have also been identified as part of the pre-mediation process and would be provided to stakeholders without undue delay.

In the case of subpoenas relating to sensitive documents, stakeholders can only inspect the documents presented and not make copies. Copying such documents requires an additional hearing which will only cause further delays. Since, during mediation, both parties agree to cooperate with each other, such documents can be exchanged in an agreed manner in advance of the mediation session, making the process much more efficient and amicable.

Issuing a subpoena, as an instrument in the litigation process has become simpler with the recent amendments, mediation continues to be a better alternative to subpoenas, or any other legal action. If you are unsure on whether you should serve a subpoena or choose mediation instead, I would be more than happy to help. Let’s talk.

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