Family Court crisis creates more incentive to use FDR and mediation – to ‘make peace, not war’

It’s a crisis!  There are not enough judges!  Judge time is having to be moved from District Court criminal cases to Family Court cases!  Family Court registry staff are overloaded!

All of this is true.

‘[D]elays in Christchurch are such that a colleague was told on 6 April that if her matter was ready for hearing immediately it was not likely to be heard until the second quarter of 2019.’ – Kirsty Swadling, chair, NZLS Family Law Section, in Family Advocate, Winter 2018.

So let’s use mediation, unless there is an overwhelming reason not to.

The law already provides for mediation, even if the parties do not want it.

And, even if the parties think they do not want it, mediation can be effective.

Not wanting mediation, or thinking it will be pointless, is itself an early stage of mediation, as described eloquently by Gary Direnfeld in his recent blog, ‘Getting Through the 6 Stages of Mediation.’

‘[T]he pre-mediation phase can create the impression that one or both sides will not negotiate in good faith; will undermine the process intentionally; will remain unmovable in their position. It is vital to appreciate that these are the typical conditions through which virtually every separated parent first enters mediation. If not for these conditions, you wouldn’t be considering mediation in the first place.’ – Gary Direnfeld, Getting Through the 6 Stages of Mediation (June 2018).

This article considers the use of compulsory mediation in parenting/guardianship cases under COCA.  A later article will consider its use in care-and-protection proceedings under the Oranga Tamariki Act.

Compulsory mediation in Care of Children Act (COCA) cases

FDR (Family Dispute Resolution) is required – before starting most types of COCA court proceedings – unless an exemption is granted or children will be harmed from the delay.

When it was introduced in 2014, FDR was a bit shambolic. It was under-resourced and inflexible. It was also a symbol of unwelcome changes forced on lawyers and courts by the then government.  Instinctively it was to be avoided.

Four years later, that no longer applies. FDR is well organised (through FairWay and FamilyWorks), well resourced (12 hours instead of the initial 5), and flexible in approach. It follows international principles of best-practice mediation, including repeated and effective screening for cases where mediation is inappropriate. It incorporates specialist  ‘preparation for mediation’ at little or no extra cost to participants. It need not be final – the outcome of the initial mediation can be scheduled for review in (say) three months.

Some lawyers are sceptical about FDR that occurs without overtly incorporating ‘the voice of the child’ through a children’s lawyer, although FDR processes do include the children’s perspective using a variety of tools. The parties can employ their own, joint ‘lawyer for child’ (and share the cost), or agree to the mediator meeting separately with the child/ren, or add a child psychologist to the mediation process, or use other processes depending on the child and the parents’ preferences.

Even if FDR does not occur before proceedings start, or is tried without resolving the issues, it is not too late.

FDR can be directed after Family Court proceedings have started. In these cases, there is usually the added advantage of a court-appointed lawyer for child.

FDR can be directed in existing proceedings even if the parties have already used FDR within the last 12 months.   If the parties have already used FDR within the last 12 months, a direction to FDR can be made only if the parties consent to going back to FDR.

However, if the parties have not already used FDR within the last 12 months, the Family Court can direct them to use FDR even if they do not want to.  This is what I believe should happen more often.

Such a direction can only be made if the Judge considers that there is a reasonable prospect that FDR will assist the parties in reaching an agreement on the resolution of the matters in dispute. (Care of Children Act 2004 s 46F(3)(a))

Reluctance by one or both parties is not a barrier to a successful outcome, especially if the parties have lawyers who can coach them towards a positive approach to mediation. See Direnfeld blog mentioned above.

Yes, one or both parties may have to pay $448.50 each towards the cost of FDR, if their income is higher than the threshold for government funding.

They may also opt to pay for Preparation for Mediation (PFM) ($258.75 – but PFM is free for both parties if one party is eligible for government funding).

That is a pittance, compared to the cost of legal fees (usually $200-400+GST/hour) and the time/energy/stress of ongoing court proceedings.

If the Family Court directed more cases to FDR, and if family lawyers supported this with appropriate advice and encouragement to their clients, the court backlog would ease without needing more judges.

It’s worth a try.

Cheryl Simes

28 June 2018

‘Judge shortage pushing courts to crisis point, New Zealand Bar Association says’, NZ Herald, 28 May 2018