A team approach to family disputes
Written by Samantha de Coning
Family disputes are complex, interrelated and can rarely be quantified into one specific legal specialisation – which can be frustrating for those of us who like order and neatness! You may think you are focusing on day to day care and contact with children but as you deal with that issue, just like a game of Jenga, the surrounding bricks that have been holding things together start to wobble. Relationship property, spousal maintenance, disputes over family property, elder care, wills, trusts and estates can all come crashing down around you.
It is for these reasons that when Family Dispute Resolution (FDR) was first introduced in 2013, it was Parliament’s intention to create a ’whole of family’, full-spectrum family mediation service that effectively offered dispute resolution from ’cradle to grave’. Due to budget constraints this yet to be fully realised. However, we should not lose sight of the ‘why’ behind this aspiration.
FDR mediation assists parents to focus on the needs of their children and their underlying interests. Parents are encouraged to create a blueprint for how their family will operate after a separation and how they will now work as co-parents to ensure that they can still meet the needs of their children and provide an environment that will support their original aspirations. When facing the overriding concern as to how will they financially support their children post separation, often the ability to make long term decisions around care will depend on the outcome of the relationship property split. If conflict in either of these areas continues, it will impact the relationship between the parents and likely undo any goodwill that was in place between the parents. Frustrations and anxiety over unresolved tensions cannot help but spill over to the children. It is therefore important to provide a flexible process for relationship property matters that can work alongside FDR if we, as practitioners, are to provide real support and opportunities for resolution for families.
This is not a new concept. Much thought and research has gone into how families facing challenges are supported and more significantly, how this can be done better. The Independent Panel’s findings in Te Korowai Ture ā-Whānau highlighted the need for “strengthened and connected family justice services”.1
This same need - to create more connected processes - is also echoed by the Law Commission through their recommendation of a reform of the Property (Relationships) Act proposing that FDR be extended to cover disputes under this Act.
While we wait for legislative change to meet what we all recognise as a growing and pressing need, more families are impacted by the delays in the Family Court which is bogged down by “whole of family” disputes, further creating obstacles to accessing justice. So, what are these families to do and what is our responsibility as practitioners who work in the family disputes space?
I am reminded of the expression ‘Nothing changes, if nothing changes’. Family mediators and lawyers have an opportunity to provide integrated processes for families and in this way, can create the change needed. While each has distinct roles, together a “whole of family approach” can be applied. In order to lead this change, we can begin by asking how we can better work together to help families find resolution and move forward. Whole of family dispute resolution processes should involve clients, mediators and lawyers working together in partnership. It is not an either/or situation, but rather a complementary progression where both lawyers and mediators can bring together their skills and experience to facilitate the best outcomes for their clients and their children.
Specifically, when family disputes don’t run smoothly, it is often the underlying issues which result in fixed positions and protracted negotiations. In these cases, a skilled mediator who also understands the legal complexities will be able to help the clients to get unstuck and make a plan on how they can move forward. And can do it quickly, efficiently and cost effectively.
Acknowledging and supporting the need for clients in family disputes to come together to resolve the conflict between them is key, in order to then move on to jointly finding solutions to their dispute. But so is the need for clients to be supported with independent legal advice. Recognising the complementary but distinct role of the mediator and lawyer provides us all the opportunity to provide efficient, accessible and effective processes for resolving wider family disputes. In this way families facing these challenges can be supported and provided with practical processes which promote the interests and needs of parents and children. And as practitioners, we can accept the challenge of creating the momentum for change.