Family Dispute Resolution in 2021: why are the scales still tipped in favour of Family Court applications?

Written by Will Story for the Family Advocate, Winter 2021

At the recent AMINZ Conference 2021, members of the Family Dispute Resolution (FDR) sector group discussion spent some time traversing the status quo and future of FDR. This was in the context of an inspiring conference with various presentations from keynote speakers challenging us to consider our wider legal system, and how it is experienced by the people of Aotearoa.

We deliberated why it is that there are a staggeringly low number of FDR mediations completed per year (around 2,000) compared to the number of “on notice” applications being made to the Family Court for Care of Children Act or Guardianship Orders (around 12,000 – and that is excluding without notice applications). How is this ratio so out of proportion, with a mandatory family mediation scheme in place (by virtue of section 46E of the Care of Children Act 2004)? We further considered widespread public perception of FDR as being an “under-utilised” model, based on misguided information and assumptions that it is voluntary. I have drawn on some themes from our sector group discussion which included experienced mediators and family lawyers to further explore in this article the various obstacles preventing uptake of FDR in 2021, together with some of my own thoughts as to why these obstacles are slowly but surely being eroded.

As the manager of FDR for a nationwide supplier, I continue to be surprised by the number of conversations I have with people across Aotearoa who claim to know very little about FDR. Although the Ministry of Justice and industry players have invested time and money in educating on FDR, this tells me that there remains much work to be done. We can all help with illuminating the service. Our vision is for FDR to be touted and shouted from the rooftops!

Although there has been a clear shift in collaboration between lawyers and dispute resolution professionals over the past few years, it was suggested that there remain lawyers who may be challenged by FDR or who may have had adverse experiences, who consequently find it difficult to advise and support clients to engage in FDR. Although this is difficult to understand, given the very clear obligations under the FDR Act and other statutes, it seems that there is anecdotal evidence of this still occurring. As a supplier of FDR, I know that we do from time to time receive calls from lawyers questioning whether FDR is compulsory. Reasons for practitioners’ lack of clarity around the law were suggested. For example, we mused that some general practitioners operating in rural, sometimes isolated locations may have less visibility of FDR in action than specialist family lawyers practicing full-time in family law. It is acknowledged that the fragmentary roll-out of the Te Korowai Ture ā-Whānau report recommendations has left some practitioners with confusion around FDR’s ongoing role.

The confidence in FDR as a model for family justice administration has taken some time (rightly or wrongly) to build. Resistance to FDR from both the bench and bar since its inception has undoubtedly been one barrier. As the old saying goes, you are only as fast as the slowest team member. Thankfully, critics of FDR are now fewer and farer between as the model has embedded itself as a reliable and effective way of resolving family disputes. Furthermore, many of the myths surrounding FDR have now been dispelled. Do we really believe that, in 2021, the Family Court which operates in many ways like traditional Courts on an adversarial hearing model is the way of the future for resolving common family disputes? I certainly don’t think so. As long ago as 2002, a Law Commission discussion paper commissioned by Vivienne Ulrich QC observed in relation to ongoing family disputes: “The standard legal process presided over by a judge, which follows the principles of natural justice and gives each party the right and opportunity to respond to each allegation before a determination can be made, is not the ideal forum for such a dispute.” Fast forward nearly 20 years – we now have a system that is the ideal forum – but why isn’t it being better utilised?

It is hard to ignore that for lawyers and legal fee generation based on the traditional hourly rate model the often-protracted hearing process is much more profitable. How can lawyers be criticised for supporting clients to take a course of action which, while may be destructive on future familial relationships, can be justified by way of it being entirely in accordance with the law and advocacy principles? Our Family Courts are bulging at the seams. As the Te Korowai report writers concluded in 2019, the Family Court is failing families in many respects. The diagnostics have been done. We need to speed up the remedial steps. Part of that process needs to involve a long, hard look at whether adversarial litigation for families in our modern world is always appropriate.

Further to the idea of resistance, it would be remis not to address the proliferation of without notice applications being made to the Court since FDR’s inception. This often “effective” way of circumnavigating the requirement for parties to attend FDR has been utilised by lawyers in novel ways. As we know, the former Justice Minister’s decision to implement certain changes from Te Korowai in 2020 was prompted, in part, by a recognised need to address the backlog of applications before the Court. It is my sincere hope that we can reduce the number of without notice applications for all care of children and guardianship matters from where it currently sits at around 12,000 to where it used to sit at around 7,500 (prior to 2013) so that the without notice track is reserved for cases which are fully deserving of a Judge’s attention.

Finally, there remains the issue of resourcing. FDR is an excellent model, but as an out-of-Court service, we need to ensure it is on the same playing field as in-Court services. Some at our sector group were able to point to Court directed communication counselling (which is funded) as an advantage of being “in” Court. With FDR, any time spent with a Preparation for Mediation provider (which some refer to as pre-mediation “counselling”) ultimately reduces the number of hours available for mediation, as does the inclusion of a Voice of Child Specialist. What can we do about this? The Ministry of Justice is actively working on implementing the Te Korowai report recommendations and there is plenty of scope for input from all. Let’s ensure our voices as FDR providers and suppliers are heard.

These are, in my opinion, the main reasons for the number of on notice Family Court applications far exceeding the number of FDR cases in 2021. But this trend will have to buck, in my opinion, for the following reasons.

The widespread successes of FDR are becoming increasingly difficult to ignore. With a success rate fluctuating around 80%, the numbers speak for themselves. Bit by bit, judicial and practitioner resistance is being replaced by confidence. My hope is that more involved in academia will take notice of the statistics now available as to the successes of FDR and assist with the drive to educate.

FDR is a more accommodating and inclusive process than the Family Court. Whether it be a tikanga process which the parties are seeking, or a caucused mediation via Zoom, FDR mediation being an entirely consensual process can be specifically tailored to meet families’ needs. In 2021, there is a need now more than ever to live up to our Treaty obligations by ensuring our justice processes are accommodating and equitable for all.

The costs of FDR, in comparison to the Family Court, are a drawcard that will create a stronger pull once Aotearoa becomes fully informed. As living costs in Aotearoa rise, the affordability of funding Family Court litigation for many families (particularly those who may not qualify for legal aid but who may still be struggling financially) reduces. So how will we as a nation become better informed? The new Kaiārahi – Family Court Navigators are playing a huge role here. There is great hope that the extensive gap in information sharing between the Courts, lawyers, Ministry of Justice, community organisations and other justice sector participants will be bridged. The role cannot come soon enough and is something which will be of immense benefit to the whole family justice system.

We need to make it our task to educate and to offer peer support. Encourage colleagues to continue their professional development with “refresher” FDR courses. Don’t be afraid to challenge other professionals’ decision making around the suitability of FDR.

The Family Court backlog is not reducing. It cannot be long until the alternative forums for family dispute resolution are more widely noticed – the chief of which is FDR.

For completeness I wish to note that this article contemplates on notice family cases suitable for FDR. There remain, of course, cases which are not suitable for FDR (for example, cases involving family violence). Based on ratios of on notice to without notice applications before 2013, however, I simply don’t believe that we cannot turn the current ratio of 1 FDR mediation to every 5 or 6 on notice Family Court applications on its head. I’m hopeful that we can all play a part!

 

About the author

Will Story BA LLB is Operations Manager of Family Services at FairWay Resolution Limited.

Before joining FairWay, he was a practising Lawyer with significant experience in family law, property law and general practise (both in Hawke’s Bay and Wellington).

If you would like to get in touch with Will, please contact him by email at will.story@fairwayresolution.com