If there is ever a reason for a radical rethink in how we, as a society, manage dispute resolution, it’s the scenario currently playing out in the Federal Court
system where we have a massive backlog of family law cases, many of which have been in the system for up to three years, writes Alison Shaw.
It’s hard to imagine what these families must be going through and I cringe with embarrassment to think how it must be affecting the many children who are involved.
Family Law disputes are, by their very nature, highly emotive and often have a damaging effect on the parties involved. It’s immensely difficult to get on with your life, to be happy and productive in your work or to focus on your school work, when there is pain, anguish and anxiety shadowing your family relationships.
It is most unfortunate that Australia and the family law legal system is in this predicament. The judicial system has failed Australian families – it’s as simple as that.
All credit to Federal Circuit Court Chief Judge William Alstergren for his commitment to prioritising the resolution of the cases that have been languishing in the system the longest and also for identifying mediation as the resolution protocol.
As a specialist family lawyer and mediator, it might seem entirely self-serving to commend the decision to refer as many of the outstanding cases as possible to mediation. Twenty years in litigation in the family courts in their various forms have convinced me that there is unrealised merit in helping people resolve legal problems without courts. However, if we don’t deliver the highest standards of mediation services to these families, they won’t settle and we risk delaying the resolution of their cases even further and that would be tragic.
My view is that all Family Law cases should be referred to mediation using the facilitative model by default as the first line of dispute resolution. Also, that mediators are appropriately experienced in the facilitative model, qualified and competent to deliver this service transparently, to deliver outcomes for the families.
The process needs separate screening for appropriateness and then confidential initial consultation with the lawyers and the parties in preparation for the joint session. Mediators also need flexibility of time to conduct the mediation process as fast as the slowest person and to accommodate the mental health of the family members to keep everyone moving forward and future focused. We cannot fail these families a second time.
The reality is that in Australia, there are many lawyers who offer mediation - and I am one of them - and there are over 3,200 NMAS accredited mediators nationally – but there are actually relatively few practitioners delivering mediation using the facilitative model in a professional and transparent way.
Most mediators are very casual about the process of mediation they offer. Most lawyers, including barristers and silks who offer mediation, are far more comfortable offering litigation, legal opinion and advice. They can get away with this because the mediations are referred to them based on their own referral network within the law.
The assumption within the industry is that years of legal experience or eminence in the business community are ample requirement to offer mediation as a service but this is misinformed. Just as being a chatty, friendly person doesn’t qualify one to be a hostage negotiator, mediation is a highly specialised field requiring a very specific skill set, especially when it comes to Family Law.
Most lawyers who are not accredited or experienced mediators may not have the skills to expertly control the process of mediations only, even if they are experienced in Family Law.
Mediation requires an independent approach to exploring all the issues, both legal and non-legal, that many barristers and litigators simply aren’t accustomed to or comfortable with. There is also the need to use emotional intelligence to read the clients, articulate carefully to summarise accurately and reframe neutrally their concerns, ensuring they feel safe, respected and heard in the mediation process.
The aim of mediation is to assist clients to reach an outcome themselves, which can become legally enforceable between them. It should seek to resolve all issues in dispute to avoid or minimise any further costly court processes and prioritise the preservation of relationships vital to all children and families. To do this well requires specific, learned skills in mediation and not just negotiation or dispute resolution generally.
Post separation, Australian families need mediators who are experienced in mediation, not just the law. They should have proven ability to get parties communicating again and experience in creating the environment for respectful and civil communication so that clear and certain arrangements can be agreed, encompassing all areas of family law including child support, spousal maintenance, property as well as parenting.
And, if it doesn’t settle because someone is just not ready to agree, the next step should then be arbitration before litigation to preserve what has been agreed in the mediation and not throw that away.
I sincerely hope that the Federal Circuit Court Chief Judge Alstergren takes this into account in the resolution of this issue and refers cases to experienced and appropriately qualified and competent mediators.
Alison Shaw is a mediator at SHAW Mediation Australia.