Fulfilling the potential of the FDR Act
Written by Keri Morris – Head of family Services
The Family Dispute Resolution Act 2013 is New Zealand’s first alternative dispute resolution (ADR) statute establishing a framework for the accreditation of specialist family mediators. It also foreshadows a time when families will be required to attempt ADR before filing Court applications.
The vision, yet to be realised, is for Family Dispute Resolution (FDR) to provide a whole of family approach. A place where families could come for collaborative conversations for all family life issues – elder care, relationship property and estate planning. Unfortunately, the reform of the Family Court narrowed FDR from a full spectrum family mediation right from cradle to grave, to the FDR we know today. Resolving guardianship and care arrangements for children is the first part of family law covered by the FDR regime, only one aspect of its original intent.
Following the original legislative intent, the infrastructure, systems, processes and skilled mediators have been ready and waiting for some time to be accessed. Families are the cornerstone of our society and building and supporting functional robust families is why many of us come to work every day.
The Government has confirmed that it approves of the family mediation regime under the FDR Act with the recent Farm Debt Mediation Act providing a similar regime for the accreditation of mediators and a focus on mediation as a first step in resolving disputes.
FairWay’s Family Dispute Resolution services already make a positive difference in the lives of New Zealand families and children. The hope is that if parents can learn to manage their own conflict and co-parenting challenge then this will have a positive influence on their children, and in turn provide tools for them to manage their own conflict as they mature into adulthood – thus having an effect on wider social outcomes for our nation.
Families, however, face many challenges and situations where disputes can arise.
If families are able to access subsidised or free FDR mediation to resolve care issues for their children but go on to have an expensive, drawn out and stressful relationship property dispute, have the gains been lost? How disheartening for clients who have seen the healing power of mediation in a care of children situation when they subsequently have a falling out over a will with a family member but do not know how to access mediation in this context. The fact is that disputes can and do often arise in families over elder care, estate planning and relationship property, all of which are areas that can benefit from ADR.
The Law Commission has identified the need for significant reform of the Property (Relationships) Act and has recommended that Family Dispute Resolution be extended to cover disputes under this Act. Disappointingly, the Government has signalled that any reform of the Property (Relationships) Act will need to wait for completion of a review of the Administration Act and the law covering wills and administration of estates. It can only be hoped that this review will also consider extending Family Dispute Resolution to these areas where often families find themselves with issues that need to be resolved.
A review is also proposed for the Protection of Personal and Property Rights Act (PPPR Act) which provides mechanisms for the management of property and care of adults who do not have the mental capacity to manage their own affairs or care for themselves. A significant principle of that Act is that any person who is subject to orders made under the Act be encouraged to participate and use whatever capacity they have to participate in decisions that need to be made about and for them. Highly skilled and accredited mediators create a process which ensures maximum participation, deals with power issues and importantly encourages identification of parties’ needs and solutions to meet such needs. Often family conflict over the care of an elderly parent has at its base some of the unresolved issues of childhood. Mediation can provide an opportunity for these tough conversations.
This Act would benefit from a statutory regime which required issues relating to the property or care of adults to be mediated before any application could be made to the Court. Reform of legislation takes a significant amount of time, yet families can – and some do already - decide to resolve family issues using mediation.
I am reminded of a quote by Rumi “As you start to walk on the way, the way appears”. Sometimes we need to just start. Two months ago, very few mediators were using Zoom – it was too complicated, felt weird, and mediators didn’t know how to get agreements signed, share screens, check privacy settings or even turn on their camera. Now everyone is doing it – if you don’t embrace Zoom you are the odd one out. Mediators and lawyers are proud of their success and necessity has been a strong driving force for changed practice. Taking a similar approach, can we make changes to our practice and approach to family disputes now, without waiting for legislative change?
FairWay mediators provide the safe structure to assist people through the muddy part of their lives. Our mediators are skilled in assisting parties to a) understand the situation from the other person or persons’ point of view (Position), b) hear what matters to them (Interests) and c) understand their underlying needs as well as the needs of the other person or persons who are involved in the dispute (Needs). Without taking the time to explore “PIN”, patterns of poor communication are likely to continue for years – if not generations. Mediators excel in drawing out “PINs” and most importantly assisting parties to understand the PINs of other parties, some of whom are not represented at the mediation table – such as children in relationship property disputes and subject persons under the PPPR Act.
A powerful whakataukī which came out of the Christchurch rebuild inspires me and challenges us all: “Whatever you do for me but without me you do to me.”
Mediation, arbitration and working collaboratively are the best options for families. As practitioners, advisors and experts we are only in their lives but for a moment in time. Families need to walk their own paths and continue to live more often than not linked together in a family system.
About the author
As a mediator, Keri is passionate about empowering parties with coaching and tools to help them move forward.
Keri is Head of FairWay’s Family Services, including Family Dispute Resolution (FDR) which helps parents and guardians to design their own practical parenting agreements focused on the needs of their children.
If you would like to get in touch with Keri, please contact her by email at firstname.lastname@example.org