Family Court reform and the new requirement for professionally recognised mediators

Deborah Hart                 The practice of mediation goes all the way back to the courts of ancient Greece. But the profession of mediation within the New Zealand courts and as an adjunct to them remains an unfolding work.

These facts warrant this conclusion: the imminent introduction of mediation as a central part of our family justice system has both the weight of history on its side and the challenges of the present to contend with.

This is particularly true when it comes to the urgent need for professional readiness on the part of those who want to become what will be known as Family Dispute Resolution (FDR) providers or family mediators.

The creation of this new role in the country’s busiest court (the Family Court) dates back to a government-mandated review that was done in 2011. The precursor to this was a Law Commission report into dispute resolution in the Family Court in 2003 and a family mediation pilot thereafter.

The review found, unsurprisingly, that the Family Court, like any court, is adversarial, which is not ideally suited to family situations where conflict needs to be lessened.

In particular, the review found this was especially damaging for many children, both in the sense of causing them grief but also distracting time and energy from the kind of serious domestic violence cases that could be putting them at more risk.

The review found that the way the Family Court was handling family disputes was too slow, too complex and at times too maddening. It said too much time was being wasted on private matters that could better resolved outside court.

The review also confirmed that the old way of doing business was getting financially out of hand. Overall, the cost to the taxpayer of running the Family Court grew 70 percent in the six years to 2012, from $84m to $142m per year, despite the overall number of applications to the Court remaining steady.

The government has said that new system will sort out 4000 out of the 26,000-plus cases involving the care of children that are made to the Family Court every year. 

This is where family dispute resolution or FDR, set to launch 31 March, enters the picture. But what is the new FDR system, exactly, and how will it professionally work?

The Family Dispute Resolution Act 2013 defines FDR as the work of a family dispute resolution provider offered for the purposes of assisting the parties to a family dispute to resolve that dispute without having to pursue court proceedings; as well as ensuring that that the parties’ first and paramount consideration in reaching resolution
“is the welfare and best interests of the children”.

In the new system, mediators will also be given new and somewhat unusual tasks such as approving funding, providing an opinion if a party needs legal representation at a settlement conference in order to participate effectively in that hearing, recommending counselling and working with counsellors.

The service will in many cases be offered before anybody goes to court rather than after the fact. Lawyers for the child will not in most cases be present during the mediation. It is also not going to be a first option in cases involving allegations of violence and other forms of domestic abuse or for urgent applications.

Government-funded FDR will be delivered by way of “suppliers,” who will appoint relevant providers or mediators.  

What are the prospects for success? That will depend.

Any system is only as impressive as those involved in it; a lot always hangs on the calibre of those making it work.

The variety of specific challenges these new providers will be expected to help resolve will indeed be professionally challenging, particularly as cases will be raw and many will not have had the benefit of being massaged by lawyers, court staff and counsellors.

Overseas, especially in Britain, the experience has been that when such changes are introduced, a clear professional plan needs to be developed to maintain and reinforce standards of competence and to ensure the effective regulation of mediation as numbers of mediators increase.

In Australia, where similar changes have been introduced in recent years, critiques along the same lines have been made. What these largely come down to is the crucial need for ongoing professional development and facilitation.

The Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ), which has been appointed as an Approved Dispute Resolution Organisation for the new service, has a mandated interest in this. 

As part of AMINZ’s appointment, it was charged with promoting and facilitating continuing professional development of FDR providers and appointing appropriate providers. 

People wanting to become FDR providers can still apply to be credentialed by AMINZ, which has already been involved in offering module-based education and will offer more in the coming months.

Deborah Hart is the executive director of the Arbitrators’ and Mediators’ Institute of New  Zealand Inc.

Readers may also be interested in attending the upcoming AMINZ Breakfast at the Northern Club, Auckland on Tuesday 25 March 2014, where the Minister of Justice, the Hon Judith Collins, will address attendees about her expectations for family dispute resolution (FDR). Registrations are essential, please contact office@aminz.org.nz for more details.

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