Four years ago major reforms to the family justice system were put in place to help parents resolve disputes without having to go to court. The changes have not had the impact many were hoping. Mediator Keri Morris looks at how things could be improved. 

A review of the 2014 family justice reforms is in process — and probably not a moment too soon, either, given what has always been at stake for the young lives dependent on how well separating parents settle their most sensitive issues. Four 

Taking a close look at the how the court and the wider family justice system is functioning is critical for the parents, too, of course, and it’s also important for those of us with a professional interest — in my case, on the mediation front.  

Announcing the wide-ranging review earlier this year, Justice Minister Andrew Little noted that changes introduced in 2014 were meant to help people resolve parenting disputes without having to go to court, in particular by creating Family Dispute Resolution, or FDR, in the often painful process (or the “morass”, as Newsroom reported in an earlier explainer piece on what’s perceived to be going wrong).  

FDR’s role was intended to empower families to resolve their parenting issues outside court and minimise the stress children often faced when their parents separated. This has been successful. It was also supposed to ensure that the Family Court focused on those cases that most need judicial expertise. However, this hasn’t all worked out according to plan as a consequence of the removal of lawyers from the early stages of the court process.  

In particular, Mr. Little notes, there has been a huge increase in the number of urgent “without notice” applications that have to be put before a Family Court judge.  

“I am concerned that families and children are losing out as a result of not receiving adequate advice and support during this distressing time. The last government removed access to lawyers in many cases and I’m concerned about how this and the other changes have impacted on access to justice.” 

Any move to improve the functioning of the family justice system is to be welcomed — but it’s evolution rather than revolution that needs to guide the current process.  

Mediation has the capacity to empower families to reach their own confidential agreements for their own children’s futures. People get to discuss the specific issues that are relevant to them, in their own way and in their own time.  

Mediation is speedy. It’s popular, too, with figures from the period during which the current system has been in place — from July 2014 to this past June — suggesting an upbeat story.  

Exactly 21,757 couples were assessed, of whom slightly more than half — 11,575 — chose mediation. Of those who chose mediation, 9606, or 83 percent, resolved some or all of their issues.  

Those are numbers worth celebrating, not least for the money saved by those who might otherwise have pursued expensive litigation.  

The numbers also reflect the best research abroad. In Britain, the outcomes of legally aided mediations, as audited by the Legal Aid Agency, show around three-quarters of all cases that are supported in this way end up with an agreement between the parties — a pattern that has held up fairly consistently over the last 10 years for which data is available. 

Small surprise. A skilled mediator brings about an agreement that incorporates interests and outcomes beyond what one would get from a court-ordered solution. Through mediation, the parents have a greater sense of ownership and the agreements are more likely to be enduring.  

But the most compelling reason anyone involved in a dispute should consider mediation is that it works in most cases, and it particularly works for children who want and need the most anguished disagreements involving them to be resolved as quickly as possible.   

With mediation parents retain control of the process and both are more likely to be happy with the outcome as it is their own decision; with litigation, as all too many people know, the decision is taken out of your hands and neither parent may be fully satisfied with the outcome.  

Given its proven advantages, one of the most important questions that will need to be positively considered in light of all this here in New Zealand is how mediators can best work in with a system that everybody still seems to recognise has its genuine problems.  

Yes, we can always do better, but it is evolution rather than revolution that’s still key.  We know many parents can reach agreement without any assistance from lawyers or mediators. But for those that need assistance, legal services and mediation should be available out of court.  For those families who do need to go to court, the delays they are experiencing — more than nine months in some cases — are terrible. And in 2018, as in 2014, the Family Court still needs to be able to assist immediately in cases of threatened or actual violence.  

But the current political discussion over the broader scene should no more be about lawyers versus mediators than a separation process should be about parental winners and losers. What it really needs to be is about evolution rather than revolution. We need to be sure to mediate that difference.  

Keri Morris is client director of family services at FairWay Resolution Limited. Fairway offers family dispute resolution services funded by the Ministry of Justice. 

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