Family Dispute Resolution and the Family Court
By Keri Morris, Client Director - Family Dispute Resolution
Author and motivational speaker Simon Sinek says that “Innovation is not born from the dream. Innovation is born from the struggle”. In Family Dispute Resolution (FDR), those struggles have created opportunities for innovation in many different areas.
We are all aware that FDR is being under-utilised and this fact was highlighted by Nigel Dunlop in the last edition of the Family Advocate. Overall, the number of cases being referred to FDR is lower than expected, even though most FDR cases reach agreement and accredited FDR providers are ready and available to undertake mediations within 2-3 weeks.
Opportunity
At Fair Way, we have embraced this challenge and we are actively working to promote awareness of FDR in new ways.
Since August 2016, we have been working with other FDR suppliers to establish a presence in local Family Courts so judges can direct families straight to FDR where appropriate. Fair Way now has a presence in several Family Courts across New Zealand, including Christchurch, Greymouth, Wellington, New Plymouth, and most recently Nelson.
The aim is to reduce pressure on the courts, by directing appropriate without notice application cases to be dealt with through the FDR process. The FDR representative can answer any questions that either the parties or counsel may have, helping the parties to move forward with FDR and in turn, freeing up more time for the court.
How does this work in practice?
Fair Way’s process involves a FDR representative, usually either a Resolution Coordinator or Mediator, to be present at the Family Court on the scheduled family list days to transfer appropriate matters from the court to FDR.
The presence of an FDR representative allows parties to elect FDR at the eleventh hour and it also makes it easier for judges to refer parties to FDR then and there.
A lawyer for child can be directed to attend the FDR mediation, which provides the judge with an added layer of confidence that the best interests of the children remain represented.
The courts make a private meeting room available where the Fair Way representative can talk with parties, explain FDR and complete the screening and assessment process.
The FDR process can get underway quickly as the FDR representative can liaise with the parties, lawyer for child, and lawyers at the court, and arrange to conduct FDR within a short space of time.
In most cases, parties are contacted by their mediator within 48 hours and the cases are mediated within three weeks.
Under the Family Dispute Resolution Act 2013, all mediators undertaking this work must be fully accredited and have undertaken specialist training before becoming an accredited FDR provider. They can assist in a wide range of disputes, from the day to day care arrangements and holiday arrangements, to disputes about choices of schools and parenting styles. FDR provides an opportunity to get to the interests behind the issues. It creates an opportunity for parents to focus on their children and recognise that although their relationship as a couple is now over, they are likely to have many years of parenting together and that it is now time to find a way forward. The expert and experienced FDR provider can guide the parties through often fraught and difficult conversations and assist the parties to develop their own parenting agreement.
The courts can stay engaged throughout the process and the FDR provider will let them know if there are any barriers or delays in the process. In a small percentage of cases, where one of the parties refuses to fully engage in the process, we will issue an exemption and advise the court. However, we usually find that our Preparation For Mediation service helps parties to address any anxiety or hesitation about the mediation process.
Once a mediated agreement is reached at FDR, it can be returned to the court to be made into a memorandum of consent.
If only partial agreement is reached, the judge can then consider what had been achieved or agreed, and determine the appropriate next steps which may include appointing legal representation.
Our observations
In the past year, over 83% of the families who completed Fair Way’s Family Dispute Resolution process resolved one or more issues. We want to provide this great service to more Kiwi families.
Our FDR representatives in the courts have found that being physically present and welcoming has made it easier for many families to try FDR, who would have otherwise not. It has made it easier for families who have made an application to the court to consider FDR as an alternative.
Di Higgins is one of Fair Way’s FDR providers who has worked on a number of referrals from Christchurch Family Court.
“In my experience, the majority of parents who attend mediation are able to productively explore interests and resolve issues themselves provided they’ve received up to date legal advice. The benefit of court directed mediation in more challenging cases is the possible involvement of Lawyer for Child who inevitably provides a valuable new perspective to the discussion and the reality testing process. I tend to work very collaboratively in Court directed mediations, and the feedback from lawyers appointed in these cases has been overwhelmingly positive,” said Di.
It has also helped free up time for the courts to focus more on the cases that really need their support.
Overall, the process works well for both the judge and the Family Court staff as it allows relevant without notice applications to be swiftly referred to FDR and for parties to work together to swiftly resolve disputes.
We would like see FDR establish a presence in more courts across New Zealand to help improve access to the service.
Want to know more?
Fair Way Resolution is New Zealand’s largest specialist conflict management company, and an approved Family Dispute Resolution (FDR) provider with over 80 accredited mediators across the country.
Many families are entitled to 12 hours of fully-funded Family Dispute Resolution services.
Get in touch with Family Dispute Resolution team here or call us on 0800 774 420 to find out more.