Deborah Hart: Breaking the warfare mentality of Family Court

In the new system, mediation will become compulsory for most families who are in dispute over the children.

Opinion

Family disputes are problems to be professionally mediated rather than wars that will be won or lost.

It's precisely because of this that the big changes to the Family Court system ought to be welcomed - but in welcoming the new changes, it helps to understand them, too, as well as the challenges that yet remain.

Up until now, the perception has been - rightly or wrongly - that the Family Court has indeed been more about winners and losers than trained professionals helping people settle on mutually acceptable outcomes. Frustration, anger and unmet needs have more often than not been the perceived order of the day, and everybody can probably agree that these things can be particularly hellish for kids who might be involved.

The overhaul of the system - the centrepiece of which will be the introduction of Family Dispute Resolution providers, or specialised family mediators - promises to give mediation far more of a central role in settling many of the 26,000 cases which otherwise would wind their way through the court.

In the new system, mediation will become compulsory for most families who are in dispute over the children.

Among the immediate benefits sought will be freeing up the court to concentrate on cases involving genuinely insoluble issues, allegations of domestic violence and urgent cases.

Most importantly, parents are left in control of their situations, with the help of a mediator to help them reach agreements. Why? Because mediation helps reduce complicated matters down to manageable components, which in turn helps people to reach their own conclusions about what's good for their families.

In this process it's the families themselves who become the real "experts". What's more, mediators know how to come up with ideas that are creative rather than adversarial. It's part of their professional brief. They are there to help people arrive at a mutually acceptable agreement that, in contrast to an adversarial proceeding, emphasises co-operative problem solving that homes in on what's best for children.

And mediators can work fast, so we can expect speedier resolution of cases.

So who are these mediators that we are going to be seeing a lot more of instead of our judges?

The Family Dispute Resolution Act 2013 defines them as family dispute resolution providers, charged with assisting parties to a family dispute to resolve the dispute without having to pursue court proceedings, as well as ensuring that the parties' first and paramount consideration in reaching resolution "is the welfare and best interests of the children". They are a small group of specialists who will be doing this work throughout the country.

If the remedy is to improve on the problem, of course, it's vitally important that these mediators are trained, credentialled and experienced professionals, a point made eight years ago in a Law Commission report, Dispute Resolution in the Family Court, when it said that enthusiastic amateurism "is no substitute for the training and experience demanded by the social and emotional complexities of Family Court cases".

The service will in many cases be used before anybody goes to court rather than after the fact. Lawyers will not usually be present during the mediation. It's also not going to be the option in cases involving allegations of violence and other forms of domestic abuse or for urgent applications.

Are there fishhooks? Of course. They include: the teething issues of any new service heralding a fundamental shift, the lack of adequate resourcing to properly remunerate mediators and the limited amount of funded legal advice and counselling. Can the new service deliver something exceptionally good for families? I think so.

Everyone wins when family disputes are being amicably resolved rather than fought down in the trenches.

Deborah Hart is the executive director of the Arbitrators' and Mediators' Institute of New Zealand.