Family dispute resolution (FDR) processes such as mediation, once thought best kept apart from traditional systems of adjudication in Family Law, are now broadly used as the main dispute resolution process by separating couples.Fair outcomes are increasingly understood to be achievable outside court using informal processes, and given limited Court financial resources, the state now expects citizens to attempt to resolve civil disputes prior to accessing the Courts in non complex matters (such as those that do not involve violence).

The public policy push to endorse FDR mediation however is based on more than an attempt to limit the misuse of Court resources. The benefits of FDR for separating couples have been outlined in detail through various studies and include generally high success rates between around 50% and 85% and higher reported levels of satisfaction from participants[i]. Further advantages found for participants[ii] include cost savings (i.e. reduced lawyer, expert and filing fees), less stress, increased flexibility and problem solving in discussions, accessibility for parties with lesser financial means, speedy resolution within months or weeks (rather than years as with legal proceedings), greater participation and control of the outcome, greater cooperation to resolve issues and consequent preservation of relationships[iii].

The Evaluation of the 2006 Family Law Reforms by the Australian Institute of Family Studies[iv] (“AIFS”) mirrored previous studies and revealed there to be high levels of successful resolution in the use of FDR mediation in the pre-filing stage in some jurisdictions which consequently led to recommendations for an increase in FDR mediation practice[v]. It is noteworthy, however, that while some of the 2016 AIFS findings are positive in relation to the success of FDR mediation, other findings are in equal measure concerning.

The 2006 AIFS research and others[vi] revealed that couples with a history of family violence were as likely, or more likely, than other couples to use FDR mediation services. This raised concerns about the ability of the parties to fully participate in mediation and reap the benefits of the process[vii] given their vastly uneven powers of negotiation. Family dispute resolution also has other disadvantages for couples with a history of violence including that there is no recourse to a judge, no admissible evidence, no appeal rights, and no right to request reasons for judgement.

Another finding arising out of recent studies is that there is a lack of enforceability and durability in some FDR agreements. This was especially true in financial matters where proper disclosure of all financial information had not taken place between the parties as legally required, causing some agreements not to be effective when challenged in Court[viii].

In the face of mounting criticism of the management of FDR and counselling services in Family Law, including a disparity in quality of services, it was suggested by a former Federal Attorney-General that one approach might be to have most, or all, government funded services managed by a central agency[ix]. It was thought that entrusting overall responsibility to one body for quality and composition of services would streamline the FDR and counselling processes that have become so central to the practice of Family Law[x]. Such a vision has arguably not yet been realised, although recent studies (including the 2016 AIFS study) have identified some of the main issues of concern and have explored alternative strategies for collaborative assessment and risk management in relation to it.

Issues of Concern

Although FDR mediation has been adopted broadly in the community and more than 70% of couples separate amicably and are able to resolve parenting and property division between themselves[xi], concerns regarding the disadvantages of FDR mediation have arguably become the focus of recent studies. The statistics raise concerns about the 30% of couples who do not separate amicably, and about whether it is appropriate to practice mediation broadly in a environment where 27.5% of participant couples are reporting drug and alcohol issues, 26.6% of participants and reporting physical violence issues and 25.5% of couples are reporting safety concerns[xii].

The large percentage of couples with these complex issues entering FDR mediation processes are of particular concern given the inconsistency of risk assessment and management of family violence and safety concerns across the family law system more broadly. For example, 43% of professionals working in the family law area reportedly do not feel the system is screening adequately for safety risks, and 30% of parties who used FDR mediation report not being asked a single time about issues of family violence or safety in the family[xiii]. Given that there is a considerable percentage of matters entering mediation that are high-risk and high-conflict, the issue of whether these matters should be diverted away from mediation, (or better prepared for mediation) has in the past few years become a pressing concern.

The move towards extending and developing more appropriate mediation strategies, in particular for high conflict/high-complexity couples, is in line with the broader public policy objective of providing all parties with the mechanisms to resolve their own disputes and should be welcomed by professionals working in the family law community.

Watch this space!

 

 

[i] Jennifer McIntosh and Caroline Long, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report (2006) 4.

[ii] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4.

[iii] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4.

[iv] Rae Kaspiew et al., Evaluation of the 2006 family law reforms report (2009) E2.

[v] Tania Sourdin, ‘Making an Attempt to Resolve Disputes before Using Courts: We All Have Obligations’ (2010) 21 Australasian Dispute Resolution Journal 225, 225.

[vi] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4., 5.

[vii] Rae Kaspiew, Angela Lynch and Rachel Field, Coordinated family dispute resolution: Findings and future directions [webinar] (29 October 2013) < https://aifs.gov.au/cfca/events/coordinated-family-dispute-resolution-findings-and-future-directions>

[viii] McIntosh, Jennifer E. and Long, Caroline M. 2006, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution. Final report, Attorney-Generals Dept., Canberra, A.C.T, 4.

[ix] Daryl Williams, ‘Family Law: Future Directions’ (Speech delivered at the National Press Club, Canberra, 15 October 1996) <http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FLM930%22>.

[x] Ibid.

[xi] Ibid.

[xii] Ibid.

[xiii] Ibid.