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Hong Kong Law Reform Commission |
4.1 In the previous chapter, we reviewed the developments that have taken place in
England in recent years with respect to family dispute resolution. In this
chapter, we focus on how family dispute resolution systems have evolved in
Australia and New Zealand.
4.2 There is a division of view as to whether a Family Court should
have a unified jurisdiction which includes all matters affecting a family, from
taking children into care to divorce matters. The Family Court of Western
Australia, for example, has jurisdiction over federal and state matters while in
other states the state court only deals with such aspects of family law as, for
example, family violence orders or children in care. Broadly speaking, in
Western Australia the Registrar or magistrate hears undefended divorce lists,
directions, applications for interim orders of custody and access, injunctions,
maintenance and summary access proceedings. This leaves the judges to hear
defended property, custody and access proceedings for final orders, defended
divorce proceedings, contempt of court, Hague Convention applications and other
interim matters of a complex
nature.[210]
4.3 In the 1993-94 Program Performance Statement of the Attorney
General’s Portfolio, the objectives of the Family Court were defined as
being “to serve the interests of the Australian community by providing
for the just and equitable administration of justice in all matters within the
court
jurisdiction.”[211] In
furtherance of those ends, waiting times were established for certain stages of
proceedings,[212] and the Family
Court simplified its forms to make them more
user-friendly.[213]
4.4 The
need to enhance the “just and equitable administration of
justice” has led to an increasing emphasis on alternatives to
litigation as a means of resolving family disputes. This was reflected in the
report of the Joint Select Committee of the Commonwealth Parliament on
the Family Law Act,[214] which
recommended that:
“100 the provisions of the Courts (Mediation and Arbitration) Act 1991 be expanded to encourage and implement the development of alternative dispute resolution mechanisms, not within the existing adversarial system but as realistic alternatives available at any time.
101 agreements made between parties using alternative dispute resolution processes should not be subject to scrutiny or approval of the courts prior to signature by the parties.
102 the legislation [should] provide for the review by the Family Court of any agreement reached between the parties in the event that there is a dispute in relation to agreements reached, such review to be subject to a time limit.
103 the Family Court of Australia and the legal profession [should] take an active role in identifying matters which may be more suitable for resolution by alternative disputes resolution mechanisms.”
4.5 In
its 1994 report on Access to Justice, An Action Plan, the Access to
Justice Advisory Committee proposed a Draft Court Plan which included the
following objectives:
(1) to adopt consistent simplified procedures and practices which set performance standards and minimise delay and costs to litigants;
(2) to ensure equitable access to court services for all potential clients;
(3) to promote fairness and the avoidance of bias;
(4) to ensure staff are aware of and meet customer needs effectively; and
(5) to ensure that the availability of resources reflects court priorities in access to justice and customer service.[215]
4.6 The Access to Justice Advisory Committee’s remit was to
seek ways to enhance access to justice and make the legal system fairer, more
efficient, and more effective. One aspect of their study was consideration of
the role which could be played by mediation. The Committee recognised that
there were arguments against the use of court-annexed
mediation,[216] but recommended
that these be taken into account in:
“the framing of official programs intended to encourage resort to ADR. This can be achieved, at least to some extent, by encouraging appropriate training for mediators and establishing screening processes to identify parties whose disputes are unsuitable for mediation”.[217]
4.7 The Access to Justice report outlined the arguments against
court-annexed mediation as follows:
(1) “It is claimed that courts are places of public authority, where judges make decisions that are enforced by sanctions. These qualities are ... inherently incompatible with the philosophy of ADR, which is based on the consensual resolution of disputes.”[218]
The report’s response was that this was not an argument against court-annexed mediation itself, but rather against courts having the power unilaterally to refer parties to mediation.[219]
(2) The involvement of judges in ADR will erode respect for the judiciary: “ADR attached to courts devalues the very nature of judicial decision-making and changes the focus of courts as sovereign decision-makers.”[220]
(3) Some techniques of mediation, such as private caucus sessions with each party, are inconsistent with the judicial process, which must be public and scrupulously fair to both sides.[221]
The Chief Justice of the Federal Court responded by saying that in the five years that it had been available, no complaints had been received that the ADR system allowed improper access to the Court.[222]
4.8 The arguments in favour of court-annexed mediation identified by
the Access to Justice Advisory Committee were:
(1) Reduction of costs, as disputes are settled earlier. As a result, the court’s capacity to cope with its caseload will be increased,
(2) ADR gives an opportunity to make better use of existing resources, and
(3) It enhances the acceptability and quality of decisions.[223]
4.9 The
Access to Justice Advisory Committee concluded by endorsing the Joint Select
Committee’s recommendation of a shift to ADR in family matters,
“provided that appropriate steps continue to be taken to minimise the
risk of gender bias in mediations in family law matters.” They
acknowledged that ADR made a substantial contribution to access to justice, and
stressed that adequate resources should be made available to implement their
recommendations.[224]
4.10 Even though the Committee did not agree with an official
accreditation scheme, it did consider that the Australian government
should:
“take such measures as are consistent with the independence of the judiciary to ensure the quality, integrity, accountability and ... accessibility of the ADR programs offered in the Family Court, ... and through the Family Mediation Program.”[225]
4.11 The
Committee recommended that this obligation could best be fulfilled by
establishing a specialist ADR body to advise government and the courts on ADR
policy issues, including minimum standards for their programmes. This body
should also consider establishing a national database containing information
about programmes, agencies, practitioners and
training.[226] Most importantly,
the Australian government must ensure that federal ADR programmes were
regularly and rigorously evaluated to ensure that they were achieving their
objectives without systemic disadvantages for any user
groups.[227] The evaluation would
include a comparison with unstructured negotiation outside the court system, and
with conventional litigation through the court system itself. The evaluation
should also address client satisfaction and the cost effectiveness of the
programmes in comparison with other modes of dispute resolution.
4.12 The Committee noted the concern expressed by the New South Wales
Law Reform Commission,[228] that
the guidelines for the operation of court-annexed schemes should ensure that
case management and reduction of court delays are not the sole, or primary,
reasons for implementation of ADR programmes. If this were so, there would be a
danger that parties might be coerced into mediation.
4.13 The Committee
recommended that the principles set out in the Society of Professionals in
Dispute Resolution’s (SPIDR) report on National Standards for
Court-Connected Mediation Programs should form the basis of the minimum
standards for Federal
programmes.[229] These standards
would be included in court charters, which would specify standards of service to
be provided to members of the
public.[230]
4.14 The Federal government issued a “Justice” statement
in May 1995 in which it committed itself to making dispute resolution services
more widely available. Funding was allocated to 24 new family mediation
services throughout Australia over a four-year programme. Funding was also
allocated to expand community based family mediation services. In a national
poll in July 1995, only 17% of Australians were aware of the availability of
family mediation services. In December 1995 a community education programme was
launched to inform the community about the availability of such services. A
National Alternative Dispute Resolution Council (NADRAC) was established in
November 1995 to develop a comprehensive policy framework for the expansion of
alternative dispute resolution.
4.15 The Government responded to reform proposals by shifting the
focus of the family law system from litigation to non-adversarial dispute
resolution processes.[231] The
Family Law Reform Act 1995 (the 1995 Act) reflected this shift, and came into
force in 1996.
4.16 The 1995 Act provided a mechanism for community
based counselling and mediation organisations to become approved organisations
under the Family Law Act 1975. The immunity, confidentiality and admission
provisions that already protected court mediators were extended to these
approved organisations. Increased budget provisions were made to implement the
legislation. Section 13E placed a duty upon the Minister to publish a list of
approved organisations.
4.17 The 1995 Act introduced the term
“primary dispute resolution” to refer to arbitration, counselling
and mediation. This was intended to emphasise that these were the primary,
rather than the “alternative,” dispute resolution processes for
family law disputes.[232]
4.18 The Family Law Act 1975 made provision for court counselling
services to support the family, both before and during the court process, and to
assist them to adjust to court
orders.[233] All counsellors
attached to the court programme, or in approved counselling organisations, are
now called family and child counsellors to emphasise the child’s needs.
4.19 A party to a marriage can seek counselling from a family and child
counsellor by applying to the Family Court by notice. Such an application can
be made without any other proceedings being
taken.[234] On receiving the
notice, the court service “shall arrange ... for the parties to be
interviewed ... for the purpose of ... the improvement of their relationship to
each other or to any of the children.”
[235] There are also provisions
for a parent or a child to seek such counselling from the court
service,[236] or a person may
request the service direct from a family and child counsellor without a
notice.[237]
4.20 If, when
making an order or granting an injunction, the court considers it to be in the
interests of the parties or their children to attend upon a family and child
counsellor, the court must direct or advise either or both parties to so
attend.[238]
4.21 The
court can also advise parties to attend counselling if it may improve their
relationship to each other or to any of their
children.[239] The court must
consider whether or not to advise the parties in proceedings, other than those
relating to children under Part VII, of counselling to assist them and their
children to “adjust to the consequences of marital
breakdown.”
[240]
4.22 The 1975 Act contains provisions for a party to proceedings
about children to seek counselling to discuss their care, welfare and
development, and to try to resolve the differences between the
parties.[241] Conciliation
counselling differs from mediation. Conciliation counselling is designed to
encourage a couple to talk together to reduce conflict and to encourage
agreement of practical issues, particularly issues concerning residence and
contact. Conciliation counselling has broader aims than mediation, in that it
can include counselling to help parents and children to adjust to the separation
and work through their anger and hurt. Section 65L provides that counsellors
may be required to supervise or assist compliance with parenting orders by, for
example, supervising contact:
“It is a process whereby separating parents are encouraged and assisted to make joint decisions about the future welfare of their children ... Counsellors are required to maintain a focus on the best interests of the children and to educate parents accordingly.” [242]
4.23 Section 62F of the Family Law Act 1975 gives a discretion to the
court, in relevant
proceedings,[243] to direct
parties to participate in a “conciliation conference” to endeavour
to resolve their differences, and to discuss a child’s care, welfare and
development. It is also possible to have voluntary conciliation counselling
prior to issuing proceedings. Subject to certain exceptions, a parenting order
cannot be made unless the parties have attended a conciliation
conference.[244] The clients only
have to agree that they will attend together, not that they will actually
conciliate.[245] However, the
parties are under an obligation to make bona fide endeavours to reach
agreement.[246] Failure to attend
a conciliation conference when ordered by the court can be regarded as contempt
of court.[247]
4.24 If no
agreement is reached, or if a person fails to attend the conference, the
counsellor or welfare officer will report that fact to the
court.[248] Evidence of anything
said at these conferences is not otherwise admissible in any
court.[249] However, the
counsellor does send a memorandum to the court indicating the outcome of the
conciliation counselling and offering guidance on future management of the case.
This does not disclose privileged
information.[250]
4.25 Property matters must also be referred to a conciliation
conference before a registrar, and it is possible for both children’s and
property matters to be considered at a joint conciliation conference conducted
by registrars and
counsellors.[251]
4.26 There are provisions under section 62G(1) of the 1975 Act for
the court to order welfare reports. The court can order the parties to attend
before a welfare officer for the preparation of the report. This report may be
received in evidence.[252]
Different counsellors are used for this function, some courts going so far as to
employ outside agencies to make the
reports.[253]
4.27 Section 19A of the Family Law Act 1975 empowered potential
litigants to apply to the Family Court for the appointment of a “family
and child
mediator.”[254] Section
19AA allows a person to make such a request direct to a family and child
mediator. The court is under an obligation to provide this assistance if it has
such a service. Section 19B gave power to the Family Court to refer proceedings
to a mediator with the consent of the parties. The court has an obligation to
advise the parties to seek the help of a family and child mediator if it
considers that this may help the parties to resolve their
dispute.[255] The court may
adjourn the proceedings to enable attendance at
mediation.[256]
4.28 Mediation
was first made available in 1992, and is now available in a number of
cities.[257] Mediation may be
conducted by a single
mediator.[258] Mediators are
drawn from the ranks of those with either a legal or social science
background.[259]
4.29 Both lawyers and judges are placed under a duty to consider the
possibility of a
reconciliation.[260] They are
also required to consider whether or not to advise persons who are considering
instituting proceedings about the primary dispute resolution methods that could
be used to resolve any matter in
dispute.[261] There is a similar
requirement in respect of counselling for the parties and their children to
adjust to the consequences of marital
breakdown,[262] and counselling to
adjust to the consequences of Part VII
orders.[263]
4.30 The
lawyer for the applicant must provide a court approved document which sets out
particulars of any mediation and arbitration facilities available at the Court
or elsewhere.[264] The lawyer for
the applicant must also serve it on the
respondent.[265] If the parties
are not represented, court staff are under a similar
duty.[266] Lawyers may refer
clients directly to the mediation service.
4.31 If mediation is requested by one of the parties, then the
Director of Family Mediation of the Family Court may direct both parties to
attend an “information
session”.[267] Parties may
also be ordered to attend information sessions if the court or registrar is of
opinion that "it would be advantageous to do
so."[268] These sessions are
run by a registrar (a lawyer) and counsellor. They outline the range of options
available for resolving disputes and:
“give a more detailed overview of the mediation process. Educational components are also included covering the separation process, communication patterns, children’s reactions to separation in the context of child development, couple suitability for mediation and the range of issues that can be mediated.” [269]
4.32 By
way of example of the process in action, at an information session attended in
Brisbane in February 1995, members of the court counselling service used flip
charts to provide information, and answered questions on the legal and
psychological process. There were information packs available on the divorce
process.
4.33 After the information session, if the couple request mediation,
then a mediator will interview the parties “to ascertain the
willingness and ability of each party to participate in the mediation
process.”[270] The
Director of Family Mediation of the Family Court has stated, “a
reasonable power balance in the relationship between the people seeking an
agreement is essential to constructive
negotiation.”[271] The
first mediation session is arranged at a joint pre-mediation interview, which
also discusses any information that may need to be shared and sets agendas for
the mediation sessions.
4.34 Order 25A, rule 5, of the Family Law Rules provides some
safeguards by setting out factors to be taken into account in deciding whether a
dispute is suitable for mediation:
“(a) the degree of equality (or otherwise) in the bargaining power of the parties;
(b) the risk of child abuse (if any);
(c) the risk of family violence (if any);
(d) the emotional and psychological state of the parties;
(e) whether one of the parties may be using the mediation option to gain delay or some other advantage; and
(f) any other matter relevant to the proposed mediation.”
4.35 Gibson
suggested two further factors should be taken into account, though these are not
included in rule 5:
(1) whether one of the parties has impaired functioning due to alcohol or drug abuse, psychiatric illness or mental instability, and
(2) whether there is a history of broken agreements affecting trust.
4.36 If
mediation is deemed unsuitable, then Order 25, rule 6 provides that the parties
will be informed of the other primary dispute resolution methods available. The
mediator is required under Order 25A, rule 12, to advise the parties that they
should obtain legal advice as to their rights, duties and obligations, at the
commencement of mediation, and at any other time if the mediator considers it
appropriate, and at the conclusion of mediation and before any agreement becomes
legally binding. The mediator can direct the parties to prepare or produce any
documents that the mediator considers necessary or
appropriate.[272]
4.37 The goals of mediation are set out in Order 25A, rule 10(1)(a),
of the Family Law Rules:
“... a decision making process in which the court mediator assists the parties by facilitating discussion between them so that they may:
(i) communicate with each other regarding the matters in dispute; and
(ii) find satisfactory solutions which are fair to each of the parties and (if relevant) any children; and
(iii) reach agreement on matters in dispute ... .”
4.38 Anything
said in a mediation conference or meeting to a court mediator, community or
private mediator is not admissible in
court.[273] A family and child
mediator has the same protection and immunity as a Judge of the Family Court in
the performance of his
functions.[274]
4.39 Order 25A, rule 11 of the Family Law Rules provides that parties
may be accompanied by their lawyers. Altobelli argued there is a greater chance
of settlement where lawyers are involved in the
process.[275] He referred to the
case conferencing scheme, operated by the Legal Aid Commission of New South
Wales at the Parramatta registry of the Family Court, where there is
co-mediation with a family lawyer mediator and social scientist
mediator:
“Legal representatives are an integral part of the mediation conference. Anecdotal evidence points to the significant contribution played by legal representatives in assisting the parties to achieve settlement.” [276]
4.40 This
is borne out by a New South Wales study, referred to by Altobelli, which found
that 71% of cases with active lawyer participation settled. Unfortunately,
those cases which do not settle take up a disproportionate amount of court time,
resulting in delays of 12 to 24 months before a hearing in the case of the
Sydney registry.[277]
4.41 In 1992 a pilot mediation project (the Family Court Mediation
Service) was established in Melbourne to provide comprehensive mediation
services in addition to the existing conciliation services. The service was
“comprehensive” in that any issue in dispute could be made the
subject of mediation. Referrals under the project were voluntary. In 1994, the
success of the pilot project was assessed in a report issued by the Family Court
of Australia Research and Evaluation
Unit.[278]
4.42 The fact that the pilot project provided a comprehensive service
allowed issues relating to both children and property to be mediated at the same
time. The evaluation report found that there was a higher proportion of cases
resolved where more than one issue was brought to mediation. Eighty-eight per
cent of multiple issue disputes reached agreement, compared to 73% for single
issue disputes. Only a small number of cases were mediated in which only issues
relating to children were considered.
4.43 The evaluation report found that a critical factor which
persuaded parties to resort to mediation was a desire to avoid court proceedings
and their associated costs. Sixty-eight per cent chose mediation to avoid court
costs and the adversarial nature of litigation, though 75% were prepared to go
to court if mediation did not settle the
matter.[279]
4.44 Of the 82% of cases that achieved some measure of settlement in
mediation, 71% settled all matters in dispute and 11% settled one major matter.
Eighty-seven per cent of clients reported satisfaction that the decision reached
at the mediation was a fair one. Seventy-nine per cent felt that each party had
an equal influence over the agreement, while 78% said that the mediated
agreement was close to the legal information they were given before the process
began.
4.45 Only 5% felt that the mediators had pressured them into
agreement. Nineteen per cent felt that they would have reached a more
favourable settlement by going to court. The report noted that, though there
were inconsistencies, mediation did improve the post-dispute climate and had
beneficial effects on the adjustment of members of separating families. The
high level of settlement rates showed that the voluntary nature of the referral
to mediation seemed to have encouraged the parties to come to agreement, and
certainly did not make them take the process less seriously.
4.46 Follow-up interviews some eight months after agreement confirmed
that 86% of agreements were still in place. Of the 14% that were not, most were
re-negotiated through a lawyer, with only one case requiring court intervention.
In contrast, 42% of clients who failed to reach a mediated agreement needed a
court hearing.[280] This data is
supported by other researchers, who have found a “survival rate” of
mediation agreements of between 50% and
88%.[281] The Australian
statistics on litigation rates for mediated cases are also consistent with other
research studies, which found litigation arose in between 4% and 12% of mediated
cases which had reached agreement, and between 17% and 35% of cases where
mediation had
failed.[282]
4.47 Thirteen
months after mediation, a study in the evaluation report of court records
revealed that: “Less than 5% of successfully mediated cases, compared
to 27% of those who failed to reach a mediated settlement, had turned to court
for adjudication
....”[283] Of those who
did achieve a mediated agreement, 23% had resorted to litigation unrelated to
the mediated issues.[284]
4.48 The evaluation report concluded that:
“While mediation should remain voluntary, the role and referral criteria used by the important gatekeepers to the service (legal profession, courts and other non-legal organisations) must be more clearly understood and, if necessary, more standardised. To enhance client-initiated contact there is a need for public education about the existence, purpose and benefits of mediation as an alternative dispute resolution strategy.”[285]
4.49 It
should be noted that 51% of the referrals were from a
solicitor[286] or legal aid, 24%
were from the family court staff, and 13% from other agencies, which included
legal advice centres. Sixty-five per cent of female clients and 54% of male
clients had consulted or retained a lawyer at the time they attended
mediation.[287]
4.50 The evaluation report found that mediation is most successful
when carried out before proceedings have issued. In one research study referred
to in the evaluation report, those who attempted mediation prior to involvement
with the court recorded a success rate of 79%, compared with 44% for those
mediated after court proceedings had
terminated.[288]
4.51 The
Family Court survey concluded that:
“couples with current court applications have a significantly reduced chance of a successful outcome. The presence of a ‘litigation shadow’ is not conducive to positive outcomes and has the potential to interfere with the couple’s capacity to be reasonable and conciliatory on the issues under discussion.”
4.52 The Access to Justice Advisory Committee found the evaluation
report on the Family Court Mediation Service pilot project encouraging, but
noted that “it did not attempt to ascertain why combined property and
custody disputes appear to have a higher rate of settlement than matters raising
only one of those
issues.”[289] The
Committee indicated that a possible explanation was that given by
Neely,[290] that women may be
pressurised by their husbands to compromise their property entitlements in order
to gain custody. The committee also criticised the fact that the research
“did not include any comparative analysis of other mediation
programs.” They warned that as the co-mediation model is unique, care
must be taken with comparisons with other
models.[291]
4.53 Since 1988, the Legal Aid and Family Services Division (LAFS) of
the Commonwealth Attorney General’s Department has funded a Family
Mediation Program, administered by community organisations who provide family
and child mediation services. There are 17 such
services.
4.54 In January 1995, LAFS issued a report which
reviewed the effectiveness of the Family Mediation Program as compared to the
Family Court Mediation Service, and profiled the different client
groups.[292] The review was
conducted in a similar manner to the evaluation of the Family Court Mediation
Scheme carried out by Bordow and Gibson, referred to earlier in this chapter.
It evaluated two agencies funded by the LAFS, Marriage Guidance Victoria and the
Family Mediation Centre, together with the Family Court mediation
service.
4.55 Unfortunately, the survey was unable to make reliable
comparisons with the costs of litigation. The only way this could be assessed
would be by matching mediation and non-mediation cases right through the court
system.[293] The clients
attending mediation at one particular centre had lower incomes and these
reported that legal costs, even though moderate in some cases, impacted
significantly on
them.[294]
4.56 An average of 50% of clients came to the agencies by referral,
rather than by personal
choice.[295] The source of
referral varied according to the agency. For example, solicitors and Legal Aid
were the highest source of referrals to the Family Court service (51%) and to
the Family Mediation Service
(47%).[296] The mediation scheme
attached to the Family Court attracted a higher proportion of referrals from
lawyers than the other agencies. It should also be noted that the staff there
provided seminars for lawyers to “participate in legal education
programs and encourage feedback from legal
practitioners.”[297] In
total, out of a sample of 55 cases from agencies other than the Family Court
mediation service, 21 were referred by solicitors or Legal Aid. Family or
friends accounted for 11% of referrals, self/media were 9% and the Family Court
referred only 4% to other
agencies.[298]
4.57 What was surprising were the clients’ expectations
of mediation in the non-Family Court mediation agencies. Only 8% of men, and
15% of women, had an expectation of a fair agreement. The highest expectation
(43% for men and 29% for women) was that there would be an “impartial
third person and a neutral, stable environment.” The next highest
expectation (12% for men and 26% for the women) was to improve communication.
In contrast, the Family Court mediation service was dominated by an expectation
of a fair agreement (48% for men and 46% for women). The figures for the
“impartial third person and a neutral, stable environment” criteria
were 21% for men and 19% for women.
4.58 Clients were asked what factors
they believed had prevented them from working out their problems between
themselves. The highest figures related to the ex-partner’s attitude.
Lawyers were cited as a factor in preventing resolution of the dispute by
between 12% and 15% of men and between 0% and 5% of women, varying with the
agency attended. The “children’s wishes” were cited in
relation to one agency by 12% of men and 5% of women. Only 12% to 19% agreed
that they would have reached a more favourable settlement by going to court. An
average of 75% felt that the mediation agreement was “close to the legal
information they had received” about the parameters of settlement.
4.59 In the combined sample of 27 cases from the two non-Family Court
mediation services, 41% reached full agreement, 37% partial agreement and 22%
did not reach agreement.[299]
Only five cases in this sample involved custody disputes. Forty per cent of the
sample reached full agreement on child-related issues, 40% reached partial
agreement, and 20% did not reach agreement. With access disputes, 77% of the
sample cases from the two non-Family Court mediation services reached full
agreement, 8% partial agreement and 15% no agreement.
4.60 In the Family
Court mediation service, in a sample of 66 cases, 88% reached full agreement and
8% reached partial agreement. Ninety-four per cent of custody disputes reached
full agreement, 3% partial agreement and 3% no agreement. Ninety-two per cent
of access disputes in the sample from the Family Court mediation service reached
full agreement, 7% partial agreement and 1% no agreement.
4.61 When satisfaction was measured in respect of child related
issues, the highest rate of satisfaction was reported in response to a question,
“I felt that the agreement regarding children was practical, realistic
and workable.” This varied between 64% and 87%, depending on the
agency attended. Between 42% and 75% agreed with the statement,
“mediation helped us to agree about the time children will spend with
the parent they don’t live with.”
4.62 Clients recorded
very high rates of satisfaction with the professional skills and impartiality of
the mediators, the adequacy of information received and with the impact of
mediation on their relationship. Over 75% reached agreement. Those taking part
in the survey “reported a significant shift in their perceived
dependence on lawyers and the courts in the handling of new problems relating to
their separation.”[300]
Improvements for children were reported by 40% of the follow-up sample, compared
with 37% in the Family Court survey of
1994.[301] Ninety per cent of
clients in the follow-up sample stated that they would be willing to use
mediation services again.
4.63 In a six-month follow-up survey, changes to agreements
concerning parenting issues were made in 31% of cases. Sixty per cent of those
who changed their agreement were responding to the changing needs of their
children. Overall, 14% of those who reached agreement said that the agreement
had since broken down.
4.64 In 1996, LAFS commissioned an evaluation of the Sydney
Family Court Mediation
Section,[302] and community
mediation services. The latter consisted of the Centracare Family Mediation
Program, the Couple and Family Mediation Service of Relationships Australia
(NSW), and the Unifam Family Mediation
Service.[303]
4.65 There was strong endorsement by the clients interviewed that the
main reason for choosing mediation was the wish to avoid additional legal costs.
Perceptions of relatively low costs appeared to be an attractive reason for many
clients to choose mediation. For some, however, costs were problematic. A few
referred to the double burden of paying for mediation which failed to resolve
the dispute and then paying for litigation.
4.66 To compare the cost of mediation with the cost of litigation in the
Family Court, a method of costing was adopted that identified the tasks,
personnel, time and costs for each step in the two methods of dispute
resolution. For litigation, the estimated cost of personnel in the Family Court
amounted to A$902.51.[304] This
figure compared with estimates of A$479.32 and A$627.70 for non-Family Court
mediation, depending upon which model of mediation was adopted. For mediation
in the Family Court Mediation Section the estimate was
A$884.35.[305]
4.67 Recommendation 12 of the Sydney evaluation report concluded
that:
“Continued Federal Government funding of family mediation is important as it will continue to provide an incentive to use services which produced good outcomes that hold up over time. Because for some families with children, costs associated with the divorce itself can be a critical factor in determining post-separation physical and emotional survival, subsidised family mediation services should be seen as a sound low cost investment in the future of separating families.”
4.68 Custody was an issue for 29% of men and 31% of women, though 50%
of both identified parenting issues as the reason for going to mediation.
Surprisingly for those who see mediation as predominantly dealing with parenting
issues, property disputes were an issue for 68% of males and 72% of females.
Nearly half the cases were referred by solicitors of the Legal Aid Commission.
A further 23% were self-referred.
4.69 Satisfaction with the professionalism of the mediators, their
perceived impartiality, the quality of the mediator-client relationship and the
perception of being heard was very high. Almost all clients agreed that they
had received enough information to protect their own best interests during
mediation.[306] Despite some
negative criticisms of the mediation process, “the overwhelming sense
of the replies is one of strong positive endorsement for the unique features of
mediation.”[307]
4.70 Full agreement was reached in 44% of cases. A further 39% of
cases reached partial agreement and 17% failed to reach agreement. For custody
disputes, full agreement was reached in 74% of cases. Agreement was reached for
access in 60% of cases and in 61% of parenting disputes.
4.71 When those who had concluded mediation agreements were
followed up by the researchers three months later they indicated that there were
changes to the agreement in 33% of cases, mainly in respect of parenting issues.
Only 8% of these changes were due to a breakdown of the agreement. Forty per
cent sorted out the changes themselves and 25% were assisted by their lawyers.
Twelve and a half per cent received help from further mediation or counselling.
Mediation contributed to a more positive relationship with the other parent in
34% of cases.[308]
4.72 Three months after conclusion of the mediation, an application to
contest matters dealt with in the mediation agreement had been filed in court in
only 11% of cases. Only 2% of cases had completed a contested hearing. The
researchers concluded: “The figures suggest that low numbers of
mediated cases progress through to contested lists and very low numbers complete
a contested
hearing.”[309]
4.73 Concern has been expressed as to whether screening procedures at
intake are sufficient to identify cases that are unsuitable because of domestic
violence.
4.74 A 1996 research study by
LAFS[310] recommended that the
mediation agencies must recognise:
“the high prevalence of violence or abuse ... by ensuring that all mediators and other staff are appropriately trained in understanding and identifying issues relating to family violence; all agencies should have intake, referral, mediation, follow-up and other procedures appropriate to the needs of clients whether or not clients proceed to mediation”. [311]
4.75 There is a duty on approved mediators to consider the risk of
child abuse and family violence in deciding whether to mediate or
not.[312] The obligation to
report abuse is confined to child
abuse.[313] The guidelines
indicate that if there is current violence, the parties will not be accepted for
mediation. If it is not current, but there has been a strong history of family
violence, the parties will not usually be accepted for mediation unless the
victim can convince the mediator that he or she is able to negotiate on a
reasonably equal footing. The policy states that “it is inappropriate
to deny the mediation service to the survivor of violence if that individual can
beneficially use the service to deal with a
dispute.”[314]
4.76 A number of Legal Aid Commissions (including those in
Queensland, Victoria and New South Wales) have developed mediation and
conferencing schemes in which family law clients must participate as a condition
of a grant of legal aid. In the Northern Territory, legal aid applicants must
attend the Family Court Counselling service. The Legal Aid Commissions in the
Australian Capital Territory, South Australia, and Tasmania will not normally
provide assistance unless there are genuine attempts to settle a
dispute.[315] Where there is no
in-house mediation conferencing scheme, cases are referred by Legal Aid
Commissions to the mediators at the Family Court. The Legal Aid Commission of
New South Wales indicated that 70% of the disputes referred to mediation
conferencing in their pilot project were
resolved.[316]
4.77 The legal aid conferencing scheme in Queensland is a compulsory
process for a family law legally aided client which provides an opportunity for
disputants, with their solicitors present, to resolve a
dispute.[317] A conference can be
held when Family Court counselling has been exhausted, where there is a
willingness to negotiate, and where it is cost effective. Conferencing is a
combination of mediation, conciliation and arbitration. It is conciliation in
the sense that the chairman manages the negotiation and makes recommendations.
It is arbitration in that, in the absence of settlement, the chairman makes a
recommendation regarding the right of each party to continue to receive legal
aid funding and it is mediation in that the chairman is a neutral third party
attempting to facilitate settlement of the dispute.
4.78 In 1992/3, 849
conferences were held for family law disputes. Of these, 444 (or 65.4%) settled
by way of a recommendation for legal aid to file consent orders, or a
recommendation of “no aid” as the parties preferred no further legal
action. From 1 July 1993 to 30 March 1994, there were 636 conferences, out of
which 326 fully settled and 84 partly settled.
4.79 Conferences are held after the receipt of a legal aid
application and once means eligibility has been determined, but before the
commencement of proceedings. Where resolution is not reached, a report on the
legal merits is provided by the chairman of the conference to the Legal Aid
Office to assist in the determination of future funding. The 1994 guidelines
provided that aid might be suspended.
4.80 A conference can be heard at
any time during the dispute. Until the conference is held, legal aid is
temporarily suspended. The parties are invited to attend a conference before
any other grant of legal aid is made and before proceedings are issued. A
conference can also take place a few weeks before trial. Chairmen have
“been trained in mediation techniques”. They are solicitors,
barristers or social scientists who have practised professionally for two years
at least. The conference may be co-chaired by two chairmen from different
professional backgrounds. “The combination of mediation techniques and
professional expertise proves most helpful for clients who have difficulty in
accepting the advice given to them by their
solicitor.”[318]
4.81 In cases involving domestic violence, telephone conferencing is
offered, or the parties are kept in separate rooms. In such cases, or cases
involving child abuse or psychiatric illness, a member of the Department of
Family Services and the Separate Representative for the child shall attend. The
1994 guidelines indicated that normally cases are excluded from conferencing if
there are current proceedings dealing with allegations of child sexual abuse, or
a domestic violence non-contact order is in existence, or where a power
imbalance between the parties is apparent.
4.82 Clients generally attend conferences with their solicitors and
this is encouraged as it ensures that “clients have support and
appropriate advice when they make
decisions.”[319]
Involving solicitors also educates them on the process so that they can properly
prepare their clients and promote the process to their clients. Rogers noted
that it is the experience of all Legal Aid Commissions that it is often
difficult to convince both parties to voluntarily enter the process. She
stressed that preparation for the conferences and a positive attitude by intake
officers and solicitors were critical for the success of the programme.
4.83 Early Intervention Conferencing (EIC) was designed to assess the
impact of requiring clients in custody and access disputes to attend a
conference before being given legal aid. Williams noted that as the fiscal
constraints on the Legal Aid Office grew, so too did the use of conferencing as
a filter
mechanism.[320]
4.84 Between
December 1990 and April 1992, the Queensland scheme was independently evaluated
by Williams. The first stage of Williams’ research involved an interview
with the parties, their lawyers and the chairman immediately after the EIC. The
second stage involved a survey of legal aid clients six to 12 months after the
EIC. Williams found that clients considered the process “fair and
understandable, yielding decisions in the best interests of the
children.”[321] The
solicitors and chairmen “overwhelmingly supported the applicability of
conferencing for custody and access matters,” that is EIC’s.
4.85 Williams found that clients preferred to conference rather than
appear in court, so that, even though there was a mandatory requirement to
attend a conference, “there was a strong element of voluntary
participation making the activity
mediation-like.”[322]
The clients agreed that the conference had enhanced their understanding of the
dispute, their legal rights and the other party’s position. However, a
significant number reported that their relationship with their ex-partner after
the conference had deteriorated. Williams commented that “a better
understanding of the disputes and legal rights does not guarantee durability of
a workable post-cohabitation relationship.” Williams concluded that
conferences are more likely to settle if the solicitors involved are supportive
of the process.
4.86 A follow-up survey found no significant decline in support for
conferencing. It found that the durability of agreements was relatively
high.[323] Three-quarters of
those interviewed indicated that their agreement was still in place, though
there were some problems with custody and access. Of the custody agreements,
90% were working. About two thirds of respondents said that their access
agreements were still working six to 12 months later. Williams commented that
this appeared to depend more on the relationship between the parties than the
mechanism used to reach agreement.
4.87 Over two-thirds of the parties
said they would recommend the conference process to others. The success of the
process depended equally on professional input and the process itself. Williams
commented:
“the quality of the conference process and the outcome it achieves are a function of the quantity and quality of the resources committed by the legal and social work professions, as much as the attributes of the clients themselves”.[324]
Williams
found those professionals involved in the process overwhelmingly supportive of
conferencing for custody and access matters.
4.88 In November 1994, the Legal Aid Office announced the
establishment of a scheme for Settlement Conferences. These would be similar to
the existing Legal Aid Conferences, but intended for those cases which fell
outside the current custody/access guidelines. Legal aid could be granted where
the parties had not been separated in the preceding 6 weeks; where there
was no “genuine” dispute about
custody;[325] where a previous
agreement reached at a legal aid conference had not been adhered
to;[326] where aid was sought to
vary custody orders less than two years old or to vary existing access orders;
or where there was not strictly a “denial” of
access.[327]
4.89 The Legal Aid office in Brisbane also operates a voluntary
“Access Mediation” scheme run by in-house social
workers.[328] It targets those
who are outside the guidelines for a Legal Aid or Settlement Conference.
However, they must complete counselling first if they have already commenced it.
The scheme is also for those who want to update access arrangements already
reached in a Legal Aid Conference, Settlement Conference, or by a consent order,
or where the wishes of children over the age of 12 are the major factors.
4.90 The New Zealand Family Court was established in 1981.
Alternative dispute resolution processes have developed quite differently in New
Zealand to those in Australia. The first level of dispute resolution is
counselling at the court or privately. If this does not settle the matter, then
a mediation conference is held, the aim of which “is to demonstrate to
a couple that settlement of the dispute is their
responsibility.”[329]
If the mediation conference fails to bring resolution to the dispute, then the
final step is adjudication.
4.91 Counselling is available on request by
one of the spouses,[330] or by
“mandatory referral” after an application for a separation
order.[331] Discretionary
counselling is available when the court considers, at any stage of the
proceedings, that such counselling may promote reconciliation or
conciliation.[332] Section 10(4)
of the Family Proceedings Act 1980 provides that a judge may direct referral to
conciliation counselling in an application under the Guardianship Act 1968
relating to custody of a child.
4.92 However, counselling can be
dispensed with if the Family Court judge gives a direction that violence has
been used or threatened against a spouse or child, or if delay or other
reasonable cause exists.[333] The
counselling takes place through marriage guidance or private counsellors, but
outside the court
premises.[334]
4.93 Referral to conciliation counselling may also come from legal
advisers who have a statutory duty to encourage
conciliation.[335] The solicitor
must certify, on setting down any family proceedings or custody matter, that he
has carried out his responsibilities to ensure that the spouse:
“(a) is aware of the facilities that exist for promoting reconciliation and conciliation, and
(b) [takes] such further steps as in the opinion of the barrister or solicitor may assist in promoting reconciliation or, if reconciliation is not possible, conciliation”.[336]
4.94 In 1987, 35% of requests for conciliation counselling
came through a solicitor.[337]
Maxwell’s research found that positive outcomes were more likely when
there had been joint sessions; when the referral was made under section 9; and
when there were six or more
sessions.[338] Many disputes were
settled at the conciliation counselling stage, which can “incorporate
mediatory efforts as well as pure
counselling.”[339] In a
1987 sample of cases, 77% of couples reached full or partial agreement in
conciliation counselling. Between 1982 and 1988, requests for conciliation
counselling increased from one third to one half of the counselling case load.
“This increase in the voluntary use of conciliation has paralleled a
decline in the volume of defended court
hearings.”[340]
However, only 43% reached agreement after the court had referred the parties to
conciliation counselling.
4.95 The Family Courts Act 1980 established the post of Counselling
Co-ordinator, whose duty (set out in section 8) is to facilitate the proper
functioning of the Family Court and of counselling and related services, such as
mediation.[341] Section 8(3)
provides that the Co-ordinator is an officer of the court.
4.96 One of
the Family Court Judges[342] has
stated that the Counselling Co-ordinator has played a pivotal role in the Family
Court and has been critical to its success. Judge Cartwright noted that
“in all parts of New Zealand where there is a counselling co-ordinator
attached to the Family Court the level of judicial work in Court has dropped
markedly.” The Co-ordinator had humanised the “otherwise
bureaucratic face of the Court”. The lawyers had also taken advantage of
the service by referring clients to the Co-ordinator for appropriate referral to
a counsellor or other
agency.[343]
4.97 There are 40 Co-ordinators based at 24 Family Courts who make
referrals to 500 individuals or agencies throughout New Zealand. Counselling is
provided by marriage guidance counsellors (between 25% and 30%), private
practitioners with social work or clinical psychology experience and training
(55%) and a variety of community
agencies.[344]
4.98 The
Co-ordinator can refer cases for counselling when it is apparent that there will
be a contested dispute. Virtually all custody, access, guardianship and
domestic violence applications are referred for counselling or mediation.
Proceedings are held in abeyance, unless there are very urgent applications,
until the counsellor advises the court that counselling cannot resolve the
dispute.
4.99 A research report by the Policy and Research Division of
the Department of Justice[345]
found that very few people refused to attend, though wives complained of a
reluctance by men to attend. One Co-ordinator said that 90% of clients she had
referred for counselling had attended.
4.100 One shortcoming of the
existing law highlighted by the Co-ordinators is the fact that section 9 cannot
be used for those whose marriage has been dissolved because referral must be
“in respect of the marriage.” Co-ordinators recommended that
referral should also be available for disputes over custody and access which
arise after divorce.
4.101 The case manager’s role is to ensure that the case
progresses smoothly by supervision of the process at every stage. A practice
note from the Principal Family Court Judge designated the Counsel for the Child
(who is the child’s separate representative) as the case manager in every
proceedings. Notwithstanding this clear direction, in a research report on the
Family Court Judges,[346] four of
the judges saw the Co-ordinator as having the role of case
manager.[347]
4.102 There
is therefore considerable practical importance in the early appointment of
Counsel for the Child to ensure effective management of the case. The research
noted that Counsel for the Child is sometimes only appointed at a very late
stage, after the appointment has been suggested by the family counsellor in the
case. If the Co-ordinators had more time to assess the case at an early stage,
they could have made recommendations for the appointment of Counsel for the
Child at the outset of the proceedings.
4.103 It is important to note that the Co-ordinator also refers cases
to mediation, though the legislation does not in fact mention this service.
Chart’s report[348] noted
that the bulk of counselling work involved conciliation with a view to reaching
settlement. Indeed, Maxwell found that 77% of couples reached full or partial
agreement through these
referrals.[349] It is unfortunate
that the terminology still uses only the terms “counselling” and
“conciliation” rather than also including mediation.
4.104 The Boshier
report[350] called for a separate
Family Conciliation Service in which mediation counselling would be available to
assist the mediation process if necessary. The Counselling Co-ordinators would
have a key role, being responsible for “early classification and
referral of cases and public education.” Extra clerical assistance
would enable them to concentrate on client contact, case assessment and
referral, liaison with professional groups and public education activities.
4.105 Where the parties have been unable to resolve their problems
with a court counsellor, spouses who have made an application for a separation
or maintenance order,[351] or an
application for custody or access to a
child,[352] are able to request a
mediation conference, or it may be requested by a Family Court
judge.[353] The registrar then
sets a time and place for the conference, which takes place in a courtroom,
special conference room or the judges chambers. “While attendance is
compulsory, the parties cannot be compelled to actively
participate.”[354]
Section 17 of the Family Proceedings Act 1980 gives power to direct attendance
at mediation but it has rarely proved necessary to invoke this
power.[355] The parties’
lawyers can attend with them if the clients so request.
4.106 The
mediation conference is often preceded by the preparation of specialist reports.
These reports are available to the Chairman (who is a Family Court Judge), the
lawyers, and usually the parties. If this does not resolve the matter, a
hearing date may be set. Even then, cases are sometimes resolved at a pre-trial
conference.
4.107 Between 1982 and 1988, the number of counselling
referrals increased from 37.5% to 78.6%, while the number of mediation
conferences dropped from 26% to
14.8%.[356] Section 14(2) of the
Family Proceedings Act 1980 provides that the objectives of the mediation
conference are the identification of the matters at issue between the parties
and the resolution of those issues by agreement. The family court judge who
chairs the conferences can make binding orders if agreement is reached. If
there is no agreement, section 16 allows the same judge to adjudicate at the
subsequent hearing of the case unless he withdraws or the parties request him to
do so.
4.108 There have clearly been interesting developments in
this area in Australia and New Zealand. In Australia in particular, the
combination of funding for community mediation programmes and for Family Court
programmes shows some recognition by the Federal Government of the research
results that mediating in the “shadow of the law” may not be as
successful as early intervention prior to the issue of proceedings.
[210] Family Law Council report, Magistrates in Family Law (Jul 1995), at para 2.14.
[211] Attorney General’s Portfolio, Program Performance Statement 1993-1994, at 160.
[212] Same as above, at 163.
[213] This was also in response to a report from the court: see Report of the Simplification of Procedures Committee (1993).
[214] The Family Law Act 1975: Aspects of its Interpretation and Operation (1992), recommendations at 320.
[215] These are strategies 1a-1e of the “Draft Court Plan”: see Access to Justice Advisory Committee, Access to Justice, An Action Plan (1994), at para 15.14.
[216] They outlined these as privatisation of disputes, power imbalances, cost savings by government, and second class justice.
[217] Access to Justice Advisory Committee (1994), above, at para 11.6.
[218] Same as above, at para 11.45.
[219] They noted that no Federal court has the power to so refer, without the consent of the parties.
[220] Street, “The Court system and Alternative Dispute Resolution Procedures,” in Australian Dispute Resolution Journal (1990) vol 1, 5 at 10.
[221] Street, “The Courts and Mediation - a Warning,” in Australian Dispute Resolution Journal (1991) vol 2, at 203.
[222] See “Comment” (1993) 67 ALJ 941, 942.
[223] Access to Justice Advisory Committee (1994), above, at para 11.49.
[224] Same as above, at para 11.2.
[225] Same as above, at para 11.52.
[226] This was first proposed by the New South Wales Law Reform Commission, in their report, Training and accreditation of mediators (Sep 1991).
[227] Access to Justice Advisory Committee (1994), above, at para 11.53.
[228] New South Wales Law Reform Commission (1991), above.
[229] SPIDR reported in 1991: see Access to Justice Advisory Committee (1994), above, at para 11.59, where the principles are outlined.
[230] Access to Justice Advisory Committee (1994), above, at para 15.1.
[231] It issued a report - The Family Law Act 1975 : Directions for Amendment (1993).
[232] Section 14E of the Family Law Act 1975 (the 1975 Act), as inserted by the Family Law Reform Act 1995 (the 1995 Act).
[233] Same as above, at section 14.
[234] Same as above, at section 15.
[235] Same as above, at section 15(2).
[236] Same as above, at section 62E.
[237] Same as above, at section 62D, as substituted by the 1995 Act.
[238] Same as above, at section 16A, as substituted by the 1995 Act.
[239] Same as above, at section 16B, as substituted by the 1995 Act.
[240] Same as above, at section 16C.
[241] Same as above, at section 62C, as substituted by the 1995 Act.
[242] Brown, “The Family Court’s Conciliation Programme” (1992), quoted in Davies et al, “A study of client satisfaction with Family Court Counselling in cases involving domestic violence,” Family and Conciliation Courts Review (Jul 1995) vol 33, 324.
[243] This is concerning the care, welfare and development of a child who is under 18.
[244] Section 65F of the 1975 Act, as substituted by the 1995 Act. The exceptions are orders by consent, interim or urgent orders, where attendance would be impracticable or there are special circumstances such as family violence.
[245] Charlesworth, Turner and Foreman, Lawyers, Social Workers and Families (1990), at 185.
[246] Order 24 r 1(3) of the Family Law Rules.
[247] R v Cook; Ex p Twigg (1980) 147 CLR 15.
[248] See section 62F(5) of the 1975 Act, and Charlesworth et al (1990), above, at 51.
[249] Section 62F(8) of the 1975 Act and Order 24(5) of the Family Law Rules.
[250] Brown, “Developing and implementing Family Court Services: The Family Court of Australia”, paper presented at the Second World Congress on Family Law and the Rights of Children and Youth (Jun 1997), at 17.
[251] Same as above.
[252] Section 62G(8) of the 1975 Act and Order 25(5) of the Family Law Rules.
[253] Hall, “Newcastle revisited by way of the Antipodes,” Justice of the Peace (1990) vol 24, at 154.
[254] The Courts (Mediation and Arbitration) Act 1991 added Part IIIA to the Family Law Act 1975 and this was further amended in the 1995 Act.
[255] Section 19BA(1), as inserted by section 17 of the 1995 Act.
[256] Section 19BA(2), as inserted by section 17 of the 1995 Act.
[257] Including Melbourne, Dandenong, Adelaide, Brisbane and Sydney.
[258] Order 25A(2)(a).
[259] Access to Justice Advisory Committee (1994), above, at para 11.17.
[260] Sections 14 and 14CD of the 1975 Act.
[261] Sections 14C, 14F and 14G of the 1975 Act.
[262] Section 16C(3) of the 1975 Act.
[263] Section 62B(3) of the 1975 Act.
[264] Order 25A, rules 21(2) and (4). This is a document referred to in section 19J(2) of the 1975 Act which must be given to the parties on request to the appropriate officer of the Family Court, or when persons propose to institute proceedings.
[265] Order 25A, rule 21(4) of the Family Law Rules.
[266] Section 19 J(2) of the 1975 Act and Family Law Rules, Order 25 A, rule 21(3).
[267] See Order 25A, rule 3 of the Rules.
[268] Order 24 (5)(1) of the Rules.
[269] Gibson, “Mediation of Family Disputes in the Family Court of Australia”, Paper at the Fifth National Family Law Conference, Perth (Sep, 1992).
[270] Access to Justice Advisory Committee (1994), above, at para 11.19. See Order 25A rule 4 of the Rules. The court mediator can also direct the parties to attend an interview.
[271] Gibson, “Mediation of Family Disputes in the Family Court of Australia,” 20 September 1993, at the launch of the service.
[272] Rule 10 (2) of the Rules.
[273] Section 19N of the 1975 Act.
[274] Section 19M of the 1975 Act.
[275] Altobelli, “Mediation in family law,” Australian Family Lawyer.
[276] Altobelli, above.
[277] Altobelli, Talk on “Australian Mediation” to the Mediation Group, Hong Kong on 8th August 1994.
[278] Bordow and Gibson, Evaluation of the Family Court Mediation Service (Mar, 1994) Family Court of Australia Research and Evaluation Unit, Research Report No 12.
[279] Same as above, at 5.
[280] It is interesting to note that 31% of those who failed to reach agreement subsequently recorded a consent order, and only 27% contested the issues that had been raised in mediation. Same as above, at 92.
[281] Same as above, at 93. The report refers to Irving & Benjamin, (1987); Pearson & Thoennes, (1984) amongst others.
[282] McIsaac (1981), above; Pearson & Thoennes (1984), above; and Irving & Benjamin (1987), above.
[283] Bordow & Gibson (1994), above, at 7.
[284] These related to divorce proceedings concerning old matters. See further, same as above, at 92.
[285] Same as above, at 8.
[286] Section 16A of the Family Law Act 1975 then stated that the Family Court and legal practitioners had an obligation to direct the parties’ attention to facilities provided by the court to assist them and their children to adjust to marital breakdown. This had, no doubt, an influence on early referral to mediation by lawyers. The report was completed before the amendments to the 1975 Act introduced by the 1995 Act.
[287] Bordow & Gibson (1994), above, at 6.
[288] Same as above, at 24.
[289] Report of the Access to Justice Advisory Committee, Access to Justice, An Access Plan (1994), at para 11.26.
[290] “The primary caregiver parent rule; child support and the dynamics of greed” (1984) 3 Yale Law and Policy Review 168.
[291] Access to Justice Advisory Committee (1994), above, at para 11.26.
[292] Attorney General’s Department, Federally-Funded Family Mediation in Melbourne - Outcomes, Costs and Client Satisfaction (Jan 1995).
[293] Same as above.
[294] Same as above, at xv.
[295] Same as above, at 42.
[296] Same as above, at 43.
[297] Same as above, at xviii.
[298] Same as above, at 43.
[299] Same as above, at 51.
[300] Same as above, at xi.
[301] Same as above, at 84.
[302] This had been established in 1993.
[303] Moloney, Fisher, Love and Ferguson, Managing Differences: Federally - Funded Family Mediation in Sydney: Outcomes, Costs and Client Satisfaction (July 1996). For LAFS.
[304] This estimate does not include the costs leading to a final judicial determination because in this case it has been assumed that the matter settled at the formal negotiation stage of each process.
[305] Staff costs are higher in the Family Court. For example, a mediator (Deputy Registrar) and a mediator (counsellor) have been cost at A$43.31 per hour and A$33.29 per hour respectively. This compares with a staff mediator in the non-Family Court mediation agencies costs at A$24.00 per hour.
[306] Moloney, Fisher, Love & Ferguson (1996), above, Summary of the 1996 report, at 15.
[307] Same as above, at 17.
[308] The figures for Bordow and Gibson’s 1994 research was 40% and 43% for the 1995 study.
[309] Moloney, Fisher, Love & Ferguson (1996), above, Summary of the 1996 report, at 24.
[310] Legal Aid and Family Services Division of the Attorney General’s Department, Research/ Evaluation of Family Mediation Practice and the Issue of Violence (Aug 1996).
[311] Executive Summary, same as above, at iv.
[312] Order 25A Rule 5 of the Family Law Rules.
[313] Section 67ZA of the Family Law Act 1975 as substituted by the 1995 Act.
[314] “Family Court of Australia Mediation - Family Violence Policy and Guidelines” (Jan 1993), at para 2.25.
[315] Same as above, at para 11.39 and footnote 65.
[316] Annual report 1994, at 3.
[317] This information was given by Donna Cooper, Conference Co-ordinator, during a visit to Brisbane in February 1995, and also in written notes prepared by Bernadette Rogers.
[318] Rogers, Legal Aid Office (Queensland) Conferencing Program (1993).
[319] Same as above.
[320] Williams, Discussion Paper, Conferencing in Family Law; a Discussion of the Process and Evaluation at the LAO, Brisbane, 1992.
[321] Same as above.
[322] Same as above, at 5.
[323] This is because many of the parties had left the addresses so they could not be followed up.
[324] Williams (1992), above, at 8.
[325] Where it is considered that it would promote the interests of the children and where there is an access issue attached.
[326] This would be where there has been a substantial change in circumstances since the last conference.
[327] This is if attempting resolution will promote the children’s interests.
[328] Dispute Resolution Newsletter, Issue No 1 (Nov 1994).
[329] Wilson, “Alternative Dispute Resolution,” Auckland University Law Review (1993) vol 7 (2), 362, at 363.
[330] Family Proceedings Act 1980, section 9.
[331] Family Proceedings Act 1980, section 10. Section 19 places a duty on the court in all proceedings between a couple and proceedings concerning custody or access, to consider the possibility of reconciliation or conciliation, and to take such further steps as may assist in promoting reconciliation, or conciliation.
[332] Family Proceedings Act 1980, section 19.
[333] Family Proceedings Act 1980, section 10(3).
[334] Approximately 25-30% is provided by marriage guidance counsellors, 55% by private practitioners and the rest by community agencies. See Maxwell, Family Court Counselling Services and the changing New Zealand family (1989) Family Court Counselling Research Report No 1, at 62.
[335] Family Proceedings Act 1980, section 8.
[336] Family Proceedings Act 1980, section 8(a) and (b) respectively.
[337] Chart, “Some New Zealand initiatives in Alternative Dispute Resolution”. Commonwealth Law Ministers Conference, Auckland (1990), at 605.
[338] Section 9 of the Family Proceedings Act 1980 provides for counselling at the request of either party to the marriage.
[339] Davidson, “Family Court Counselling and Mediation: the vexed question of standards and personnel in New Zealand” (1986) 1 FLB 73, at 75.
[340] Maxwell (1989), as above, at 54.
[341] In some countries, like New Zealand and Ireland, the courts are subsumed under a Department of Justice. In Hong Kong the courts are independent of the Department of Justice.
[342] Her Honour Cartwright, “The New Zealand Family Court in operation: legislation,” Commonwealth Law Bulletin (Jan 1986), at 239-40.
[343] Same as above, at 240.
[344] Information disclosed in Maxwell (1989), above.
[345] Harland, Counselling Co-ordinator’s Group Discussion (1991) Family Court Custody and Access Research Report (No 5).
[346] A Survey of Family Court Judges (Oct 1993) Report No 6.
[347] This confusion as to the role of the Co-ordinator extended to other areas. The research report found that many of the judges thought that the Co-ordinator played additional roles such as arranging or advising on specialist referrals and Counsel for the Child. Other roles thought to fall within the Co-ordinator’s area of responsibility included emergency counselling and providing information to the public.
[348] Paper to the Commonwealth Law Ministers Conference “Some New Zealand Initiatives in Alternative Dispute Resolution,” Auckland 1990.
[349] See Maxwell (1989), above.
[350] This is summarised in Boshier, “New Zealand Family Law Report,” Family and Conciliation Courts Review (April 1995) vol 33, No 2, at 182-193.
[351] Section 13(1)(a) of the 1980 Act.
[352] Section 13 (1)(b) of the Family Proceedings Act 1980.
[353] Chart, “Some New Zealand Initiatives in ADR”, Paper to the 1990 Meeting of the Commonwealth Law Ministers.
[354] Section 13(2)(b) of the Family Proceedings Act 1980.
[355] Chart (1990), above, at 606.
[356] Maxwell (1989), above, at 52.