Categories


Tags



Archive

The Family Mediation Pilot - Where to Now?

July 29, 2013 at 4:06 PM

Where to now?

Nigel Dunlop discusses the benefit and future of private Family Court mediation

Published in New Zealand Law Journal July 2006

"The evaluation of the pilot is expected indicate that an urgent introduction of private mediation throughout New Zealand is fully justified because above all else it improves the lives of children, strengthens families and enhances the standing of the Family Court."

What is the Pilot?

The pilot is a trial of privately provided, publicly funded mediation of parenting and guardianship cases which are before the Family Court. It is being conducted through the North Shore, Hamilton, Porirua and Christchurch Family Courts. The first cases were mediated in April 2005 and the last will be mediated around September 2006.

Why the Pilot?

The only publicly funded mediation currently available to the clientele of the Family Court is judge-led mediation. Judge-led mediation is beset by many shortcomings: the Judges have little training in mediation and they are naturally perceived by the parties as authoritative decision makers rather than facilitative problem solvers. Judge-led mediation conferences are usually of only one to two hours duration and held in the courthouse. For these reasons they are better characterised as settlement conferences rather than mediation conferences. This means that the clientele of the Family Court are presently deprived of the assistance of specialist mediators and the opportunity to participate in extended mediation conferences in private settings.

Statistics

By the time the pilot concludes almost 250 cases will have been mediated under it through the Christchurch Family Court. Significantly fewer cases have been mediated under the pilot in the other three pilot Courts. Indications are that partial or complete settlement rates approximate 80%. The average duration of each mediation conference approximates four hours.

Evaluation

The Pilot is being evaluated by Gray Matter Research Ltd, a private Wellington consultancy. It provided an interim report to the Ministry of Justice in November 2005 and is due to report again in August 2006. Overall the results of the interim valuation were positive, and current indications are that the final evaluation will likewise be favourable.

Extraordinary Lack

The unavailability of publicly funded, fully fledged mediation in the family law context, is quite extraordinary. Mediation is the natural and obvious means of effectively and expeditiously resolving family disputes. Whilst publicly funded but privately provided counselling has been available for many years, it focuses on improving relationships rather than the pragmatic resolution of disputes through negotiation, which is the stuff of mediation.

Frustration

To those of us around New Zealand who have been part of so many successful pilot cases, it is deeply frustrating that the pilot is not at the very least being continued in the four current centres, if not extended to other centres. As a mediator I am convinced that the underlying reason is that few decision makers (politicians and bureaucrats) understand the power of mediation. Almost every person who participates for the first time in a mediation conference reports that it was very different to what they expected. It is very difficult to gain an intuitive understanding of the potential of mediation without having participated in at least one mediation conference conducted according to the facilitative, interest based model espoused by LEADR and AMINZ, the two New Zealand professional mediation bodies.

Criteria for assessing the value of private family mediation

There are, in the writer's view, two fundament assessment criteria, namely institutional and personal. The former refers to the impact of mediation on the Court system, for example on judicial case load and the average time to move cases through the system. The latter criteria refers to the impact of mediation on the parties and their families – whether their lives are improved as a result.

Institutional

I suspect that the economic cost / benefit analysis will determine whether publicly funded, private mediation is ultimately made available throughout New Zealand. Such analysis may however overlook an important benefit that mediation brings to the Family Court, namely a greater respect for the Court. Parties offered mediation are given a genuine opportunity to resolve matters themselves and should they not succeed and require decision making by a Judge, are likely to be more accepting of the process and outcome.

Personal

The formal written agreements reached by parties at mediation very often belie the informal benefits of mediation which may be even more important than the formal benefits. The formal benefits include the avoidance of the uncertainty, trauma, bitterness, expense and the delay of on-going litigation. The informal benefits of mediation include the re-establishment of communication and trust, the clarification of facts, improved understanding of view points and the acquisition of confidence that future difficulties, should they arise, are capable of sensible resolution directly between the parties.

Children

The obvious needs to be said: the benefit to children resulting from their parents amicably and effectively resolving disputes about them is enormous and incalculable. The pilot ensures that the wishes and interests of the children are the central focus of mediation by requiring that a lawyer represent the children in each and every mediation.

Conclusion

It is almost inconceivable to those of us who have been fortunate enough to be part of the pilot that the scheme will not be rolled out throughout the country at the earliest opportunity. It is bitterly disappointing that the pilot is being discontinued. The evaluation of the pilot is likely to indicate that an urgent introduction of private mediation throughout New Zealand is fully justified because above all else, it improves the lives of children, strengthens families and enhances the standing of the Family Court.



Category: Family Disputes