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Breaking New Ground

July 29, 2013 at 3:55 PM

Observations on the family mediation pilot

Published in the New Zealand Family Law Journal March 2006

Introduction and background

The Law Commission's 2003 report Dispute Resolution in the Family Court recommended that non-Judge led mediation be introduced in the Family Court as part of a new conciliation service. The Law Commission also recommended trialling the mediation service before any decision is made about nationwide implementation. These recommendations closely resemble those contained in the so-called Boshier Report by Judge P F Boshier now the Principal Family Court Judge.

In line with the Commission's recommendations, the family mediation pilot was established by the Ministry of Justice in four locations: North Shore, Hamilton, Porirua and Christchurch. The first mediations under the pilot commenced in Christchurch in April 2005. Judge Boshier's recommendation for community-based mediation by contracted, rather than employed mediators, has come to pass in the pilot.

A stated aim of the pilot is "... to minimise the need for judicial involvement in the resolution of disputes and the time taken to resolve disputes". The overall aim is declared to be "... to help families resolve their custody and access disputes faster and more amicably. The terms "custody" and "access" have subsequently been superseded by the terms "day-to-day care" and 'contact' in the Care of Children Act 2004 which came into force on 1 July 2005.

The above objectives resonate well with the principles set out in s 5 of the Care of Children Act. Principle (c), for example, states that:

... the child's care, development and upbringing should be facilitated by ongoing consultation and co-operation among and between the child's parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child.

Under the pilot, the Court refers parties to private mediators. Whilst this has some parallels to referrals to counselling pursuant to s 9 and s 10 of the Family Proceedings Act 1980, ("FPA") or s65 of the Care of Children Act 2004 ("COCA") there are major differences between the 2 types of referral.

Firstly, counselling referrals are made pursuant to the specific statutory authority just referred to. By contrast, there is no specific statutory authority for pilot mediations. Whilst s 13 of the FPA enables the Court to convene mediation conferences, s 14 prescribes that "At each mediation conference a Family Court Judge shall be the Chairman". There is therefore no statutory authority for the Court to convene a mediation conference to be conducted by anyone other than a Judge.

Nor is there any authority for a Court to compel attendance at a pilot mediation. Section 17 of the FPA enables a District Court Judge to issue a summons requiring a person to attend counselling at a time and place to be specified in the summons. Similarly, a Judge may issue a summons requiring attendance at a mediation conference. By definition, a mediation conference is one held pursuant to s 13 of the FPA, which as noted, must be chaired by a Family Court Judge.

It matters little that few summonses are issued pursuant to s 17. The very existence of the provision suggests that attendance at counselling and Judge-led mediation is mandatory. At first blush, the absence of any power to enforce attendance at pilot mediations may be seen to be a disadvantage. Mediators, however, are adept at turning negatives into positives. The mediator might, for example, tell a party to pilot mediation that unless they ensure the mediation process is worthwhile for the other party, that other party may simply disengage from the process. Absence of compulsion, in other words, provides a strong incentive for parties to adopt constructive negotiating stances during pilot mediations.

In the absence of statutory authority, by what authority are pilot mediations conducted? The answer is private treaty, that is to say, agreement between the parties. The Ministry of Justice Guidelines For Mediators ("Guidelines"), require the pilot mediators, together with the parties and lawyer for the child/ren, to sign a comprehensive Agreement to Family Mediation, by no later than the commencement of the mediation conference. Thus, pilot mediations are conducted in accordance with a written contract signed by the participants. It is entirely a voluntary process.

At a more prosaic level, the pilot is enabled to happen because the Ministry of Justice is providing the necessary funding. The mediators and lawyers for the child/ren receive fees for their services, and Family Court staff time is devoted to administering the scheme.

Another important feature of the pilot, is that it is limited to cases in respect of which there is an extant COCA application before the Family Court for either a parenting order or in respect of guardianship, even although the Law Commission recommended that a wider range of disputes be mediated. By contrast, parties may be referred to counselling without proceedings having been filed in Court and counsellors have the remit to address "matters in issue" which may include such matters as relationship property and child support. Judge-led mediation may similarly result in a wide range of consent orders, including the "... possession or disposition of property under the Property (Relationships) Act 1976". The integrity of the pilot demands that participants do not stray outside its intended scope, although inevitably, some "extraneous" issues will be mentioned in the course of pilot mediation.

The duration of each mediation averages three to four hours. They are conducted away from the courthouse, in the mediators' private rooms. A majority of the mediators are non-lawyers. Their background is varied including counselling, teaching, human relations and psychology. This serves to widen the community's involvement in the workings of the Court, which can only be a good thing.

Evaluation

A private Wellington consultancy, Gray Matter Research Limited, has been engaged to evaluate the pilot. They submitted an interim report to the Ministry of Justice in November 2005. The report is based on data received for the 7 months from commencement of the pilot to 30 September 2005. As nationally the pilot was reasonably slow in getting off the ground, the report contains statistics for only 37 cases for which mediation conferences were held. The report does not lend itself to ready summary, as much of the content is qualitative. It would be fair to say however, that the tone of the report is cautiously optimistic. Interestingly of the 37 cases referred to, some sort of agreement between the parties resulted in 31 (83 per cent) of them.

Statistics

For a variety of reasons, up to date statistics about the pilot are not presently available to the public. The writer is however grateful to have obtained some provisional statistics from the Christchurch Family Court through which 68 per cent of pilot mediations conducted to mid February 2006 have been referred. It appears over 200 families have been offered pilot mediation in Christchurch. Gaining consent from both parties has been challenging at times, but often made easier by the growing awareness and support of parties' counsel and the wider Family Court professional community. Mediation proceeded in over 50% of those cases and it seems up to 80% of those have resulted in either partial or full agreements. Such a rate of settlement accords with mediation settlement rates ranging from 55 per cent to 92 per cent in New Zealand and Australian studies.

Fully-fledged mediation at last

Until the commencement of the family mediation pilot, the only official state funded mediation available to parties in the Family Court was Judge-led mediation. That of course remains the case in most parts of New Zealand, where the pilot does not operate.

Judge-led mediation has its place, and within its limitations, has more often than not been effective. In practice however, the process of judicial mediation is more akin to that of the judicial settlement conference. Settlement conferences tend to narrowly focus only on the formal dispute before the Court. They usually consist of a process of compromise bargaining by the parties in response to the Judge's expressed viewpoint as to the merits of the parties' respective cases.

It is difficult for mediations conducted by Judges in the courthouse to be anything other than quasi settlement conferences. In the courthouse setting, both judges and those who appear before them, have a mind set that is created by the authoritative status and usual adjudicative role of the Judge. In the pilot scheme, the emphasis is on the parties finding their own solutions rather than having solutions imposed upon them. All this is well understood by those, including Judges, who have supported the establishment of the pilot.

The pilot does not define or prescribe the model or style of mediation to be applied under it. The Ministry's Guidelines require that all mediators must be current members of the mediation panels of either LEADR (an Australasian mediation group historically comprised mainly of lawyers) or of AMINZ (the Arbitrators and Mediators Institute of New Zealand). The Guidelines state that mediators supply their services to the Family Court under the obligations of membership of the professional body to which they are affiliated, and in accordance with the letter of engagement which accompanies each individual referral.

AMINZ and LEADR do not prescribe the model of mediation which their mediation panel members must adopt. AMINZ panel members, for instance, must have regard to its Guide to Mediation which states: "The term mediation can take a variety of forms" although it does define mediation as "...a consensual process in which an independent and impartial person, the mediator, works with disputing parties to help them explore and, if appropriate, reach a mutually acceptable resolution of some or all of the issues in dispute". And the AMINZ code of ethics states that "A member should recognise that mediation is based on the principle of 'self determination' by the parties".

It would be fair to say however, that both LEADR and AMINZ espouse a facilitative model of mediation, also known as interest-based or problem solving mediation. They place less emphasis in their teaching and literature on the settlement model of mediation, also known as compromise mediation, or on therapeutic mediation, also known as reconciliation or transformative mediation or on evaluative mediation, also known as advisory, managerial mediation.

It can be expected that pilot mediations will tend to follow the facilitative model, if only because most mediators have been trained primarily according to that model, which places emphasis on moving away from positional bargaining (eg "I insist on having the children for at least half the week") to interest based bargaining (eg "I fear that unless I have the children for at least half the week, my relationship with them will be weakened"). Positions tend to be rigid. Interests, on the other hand, are capable of being addressed by the parties in many creative ways (eg "If the children and I can stay in regular email contact, my fears will be allayed, in which case I don't mind that I have them for less than half the week)".

A good mediator however, will be able to draw on the strengths and devices of all four models as circumstances demand.

The Agreement to Family Mediation

The Ministry has provided a standardised three page agreement, to be signed by the mediator, parties and lawyer for child prior to the commencement of the mediation. Amendments may be made, as required, but to date, I've always signed the unamended document.

The topics covered in the agreement are: appointment of the mediator and lawyer for the child/ren, role of the mediator and parties, conflicts of interest, cooperation of the parties, assessment meeting, authority to settle, confidentiality of the mediation process, consent agreement, indemnity and exclusion of liability and termination of mediation.

At the commencement of each mediation conference, I remind the parties of what I consider to be the two most important features of the agreement to mediate.

The first is confidentiality, by which is meant that no attendee at the mediation is permitted to report what was said and discussed in the course of the mediation conference to any person not present, unless all attendees agree otherwise. Those attendees who do not sign the agreement to mediate, are required to sign a prescribed confidentiality agreement which ensures that they too maintain the privacy of the discussions.

The second is the privileged or "without prejudice" nature of the discussions, which means in practice, that a Court would in all likelihood refuse to hear any evidence as to the content and results of discussions in mediation, unless the parties to the agreement otherwise agree.

I explain to the parties that the purposes of these two provisions is to encourage them to speak frankly, and to be willing to place settlement proposals on the table. It is my apprehension that the parties find these explanations reassuring.

How does pilot mediation differ from counselling?

Quite often, when I am explaining the pilot mediation process to parties they ask me: "Counselling didn't work, and so why should mediation? What is the difference between the two?". Although I may think privately to myself that counselling was of greater benefit to the parties than they acknowledge, nonetheless, they are entitled to an answer to their questions.

Some of the things I might say to parties in response to their questions are:

"You probably had a number of counselling sessions, but you'll only get one mediation session. As you get only one shot at this, don't blow it."

"The lawyer for the child/ren will be at the mediation, and s/he will keep everyone focussed on the child/ren. And, other lawyers may be there too which will be helpful. By contrast, there were no lawyers at counselling."

"I'm not a counsellor, I'm a mediator. And so whatever might have happened at counselling, this is going to be different."

"Your counselling sessions probably lasted about an hour each, but this mediation might go for 3 – 4 hours or even longer."

"We're going to be seated around a boardroom table, not sitting in comfortable chairs as might have happened at counselling."

"Before the mediation begins, everyone is going to have to sign a formal agreement to mediate which is a binding legal document which all participants, including myself, have to observe. This signifies commitment to the process by everyone."

Statistically, mediations have a high settlement rate."

These points are intended to prime parties for mediation, rather than attempt to provide a learned explanation of the mediation/counselling distinction.

In my view, the differences between the two processes are not capable of simple explanation. One reason is that there are various models and styles of mediation, just as there are of counselling. And so what is it which is being compared? Another reason is that counselling and mediation undoubtedly share common features. Obvious examples include the use of passive and active listening, and an emphasis on encouraging parties to give voice to their feelings and concerns.

But it seems to me that the following might be said of counselling and mediation conducted on referral by the New Zealand Family Court. The former process lays emphasis on the parties exploring and talking through issues and often past events over a number of sessions in the presence of no one apart from themselves and the counsellor, who applies a reasonably unstructured, albeit discerning process, in respect of which the legal context tends to remain in the background rather than foreground, with a view to the parties achieving individual and collective understandings and accord, and a lessening of pain and conflict. By contrast, the mediation process involves a one-off, hard-headed, child-focussed, future-focussed negotiation session, often attended by many persons, conducted pursuant to a detailed contract by a mediator who carefully structures the session, in a pre-determined manner, with the intent that the parties will conclude by signing a final, binding and enforceable settlement agreement which explicitly addresses the relevant legal considerations, such that the proceedings before the Court are thereby formally brought to an end.

Lawyer for the children

The terms of reference of the pilot require that a lawyer for the child/ren (L4C) represent the child/ren at each and every mediation. If the child/ren do not already have a lawyer, one is appointed for the purposes of the mediation.

The L4C is effectively a third party in the mediation. If the settlement agreement includes a request to the Court to make consent orders, the Court will be reluctant to make such orders without the consent of L4C. Therefore, the parents of the child/ren need to persuade not only each other to settle in a particular way, but L4C as well. And L4C may for their part devote much energy during the mediation to persuading the two parents to settle as L4C considers appropriate.

The brief given to L4C by the Court when appointing them for pilot mediation purposes, is narrower and more specific than the brief usually given to L4C. For example, the L4C is required to explain the mediation process to the child/ren, ask whether they wish to attend any part of the mediation, and advise them of the outcome of the mediation.

In all 25 or so pilot mediations I have conducted at date of writing, L4C has played a central and pivotal role. They keep the discussion child focused, and the objective information which they impart, serves as a reality check for the parents.

Should children attend the mediations?

The family mediation pilot envisages children attending some mediations. As just mentioned, the brief given to lawyers for the child includes ascertaining whether their clients wish to attend any part of the mediation. Anecdotally, only a tiny number of children have attended mediations so far.

The prevailing view of Family Court lawyers and Judges is that it is not in the interests of children to participate in courtroom hearings with their parents. Understandably, the view is taken that children may be emotionally or psychologically harmed, should they witness courtroom conflict between their parents, and be privy to deeply personal and sensitive evidence.

In my view however, care must be taken to not automatically apply that thinking to the mediation process. The courtroom and mediation processes are completely different. The mediation process possesses greater flexibility to cope with concerns about child involvement, than does the Court process. For example, children can be given the opportunity of making a brief uncontested statement at the commencement of the mediation, and then depart.

My prediction is that the involvement of children in the pilot family mediation scheme will gradually increase in response to greater familiarity with it by lawyers for the child. When those lawyers begin to experience and observe for themselves the phenomenon of children successfully being involved in mediation, they will encourage both parents and children to consider this option. To date, children have attended two of my mediations with positive results. In each case they came in at the beginning of the mediation, briefly stated their viewpoints and then left. Both children were very keen to attend as they had strong views about what should happen to them. Neither wished to stay any longer than 5 minutes or so. Even those brief 5 minutes were emotionally gruelling, because it is no small thing to come to an unfamiliar building in the middle of town and confront your parents with your deepest feelings. The "child-focused" approach, embodied in COCA, ceases to be an abstract concept in these circumstances.

Although many lawyers, including myself, are lumbered with instilled traditional thinking about the role of children in Family Court dispute resolution, we must endeavour to retain an open mind about their participation in pilot mediation. This is an area where the pilot has the potential to effect significant and creative changes in attitude and practice.

Settlement

All settlements must be recorded in writing. The parties may settle by agreeing to request the Court to make orders by consent. As already mentioned, the Court will usually require the consent of L4C, before making the orders. Alternatively or additionally, the parties may reach agreement on various issues but not request orders be made in relation to them. The written agreement may or may not be placed on the Court file, depending on what the parties want. An agreement is a contract and hence binds the parties. Its enforceability is another issue. That depends on the nature of the agreements reached. An agreement for example, to show respect to the other party may not be capable of ready enforcement, but an agreement that the children be dropped off at 5 pm may be.

Should lawyers for the parties attend the mediations?

As already mentioned, pilot mediations have the objective that the parties reach a speedy resolution in the manner they see fit, without the heavy-handed involvement of the Court. With this in mind, some people ask me if it wouldn't be best that lawyers stay away from the mediation process so that they do not introduce an adversarial and legalistic approach?

My answer is that it is a mistaken view that lawyers are unwilling or unable to play a supportive and constructive role in mediation.

It is both unrealistic and unfair, to expect parties in mediation to enter into binding legal settlements, which may well determine the course of their lives and their children's lives, without the benefit of legal advice and support. My experience as a mediator over many years now, is that lawyers are both willing and able to contribute positively to the mediation process. When you consider some of the reasons people end up in Court in the first place, such as poor parenting skills, breakdown in communication, misunderstanding the law and long-standing conflict, for example, it is obvious that they would benefit from the skills and knowledge lawyers provide.

In my view, both the effectiveness and integrity of the family mediation pilot demands the participation of lawyers for the parties. Certainly, I encourage parties to be legally represented at mediation, and am apprehensive when they are not. Without the support of other professionals it is harder for me, as mediator, to achieve a settlement. As a mediator I cannot advise the parties, and yet parties often need firm advice. Lawyers can help people evaluate the options on the table and act as a sounding board. They can provide reassurance that the proposed settlement accords with both their rights and interests and does not contain any legal fishhooks. Having lawyers present obviates the need for an agreement to be conditional on further legal advice, which runs the real risk that the proposed settlement will later unravel before it can become unconditional.

Finally, in my view lawyers will be rightly hostile to any scheme which serves to separate them from their clients. Why should lawyers support the pilot if the pilot does not trust them to do the right thing by it? It should be noted that agreement reached by parties at counselling invariably come back to their lawyers for ratification, but agreements reached at mediation may become final and binding without any prior reference to the lawyers for the parties. Lawyers are rightly nervous of their clients concluding important and complex legal matters without their input.

How successful is the pilot thus far?

After about a year in working as a mediator in the family mediation pilot, I have been struck by the eagerness and sometimes even desperation of parties to achieve resolution through mediation. The preparedness and ability of parties to learn about, and accept the challenges of the mediation process, even though they are completely unfamiliar with it at the outset, is heartening. But the acid test that the mediation pilot is working for parties is the way they are able to work constructively at the mediation table. As mentioned, early indications are that a settlement rate of around 80 per cent is being achieved. Gray Matter Resources Limited will provide data in due course as to satisfaction rates.

I am heartened by the accurate assessment of lawyers for the parties that the mediation pilot is an entirely new phenomenon, and by their concomitant enthusiasm to give it a fair go.

I am struck by the key role played by lawyers for the child/ren, which gives tangible voice to the child-focused provisions of COCA.

Finally, I am impressed by the high level of "buy-in" by all participants. This may in part be due to the self-selection feature of a voluntary scheme. But the people I see at mediation are reasonably "typical" clients of the Court. It appears thus far that New Zealand parents are prepared and able to utilise the opportunity given to them by the family mediation pilot to reduce or eliminate conflict over their children.

NZLC R82.
"A Review of the Family Court : A report for the Principal Family Court Judge" (Auckland 1993, mimeograph).
Ministry of Justice "Family Mediation Pilot – Background for Mediators".
Family Mediation Pilot Guideline for Mediators
The person must have failed to comply with a request under s 11(1)(b) of the Family Proceedings Act 1980, That provision enables a counsellor to: "By letter sent by post request the husband or the wife, or both of them, to attend for the purposes of counselling."
Family Proceedings Act 1980, s 17.
Section 2 of the Family Proceedings Act 1980 defines "Mediation conference" as "... a conference held under section 13 of this Act".
Counsel for the parties do not sign the Agreement to Family Mediation as they are regarded as the alter ego of their clients and so bound by the terms agreed by their clients.
A "parenting order" relates to "day-to-day care" and "contact" : Care of Children Act 2004, ss 8 and 48.
The term "guardianship" is defined at some length at s 15 of the Care of Children Act 2004.
Family Proceedings Act 1980, s 9.
Family Proceedings Act 1980, s 11(2)(b).
Family Proceedings Act 1980, s 15(1)(d).
See Boulle, James and Goldblatt, Mediation: Principles, Process, Practice (New Zealand edition, Butterworths, 1998) at 248.
Arbitrators and Mediators Institute of New Zealand, Members' Handbook, (Fourth Edition, 2006).
Above, n 15.
The law as to the confidentiality and privilege of the mediation process cannot be said to be fully settled. See discussion in above, n 15 at 276-289. But the New Zealand and Australian Courts evince a keenness to uphold mediation confidentiality and privilege, in order to encourage and support the practice of mediation.
Section 6 of the Care of Children Act 2004 requires that in proceedings involving guardianship, day-to-day care and contact:
(a) a child must be given reasonable opportunities to express views on matters affecting the child; and
(b) any views the child expresses (either directly or through a representative) must be taken into account".
Section 4 requires that in such proceedings "The welfare and best interests of the child must be the first and paramount consideration....
The Agreement to Family Mediation so provides
Because they are written up as contracts having immediate effect.

Nigel Dunlop is a Christchurch barrister who has practised family law for almost 30 years. A significant part of his professional life is devoted to the practice of mediation.



Category: Family Disputes