Deborah Hart: Long way to go before Family Court revamp succeeds

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A new service known as Family Dispute Resolution, or FDR, is among the most significant changes among the reforms. Photo / Thinkstock
A new service known as Family Dispute Resolution, or FDR, is among the most significant changes among the reforms. Photo / Thinkstock

Like a stone dropped in a pond, family-breakdowns radiate lingering ripples. A relationship in crisis affects not only the adults immediately involved but more often than not friends, relatives and colleagues. Not to mention the most vulnerable individuals of all - children.

And the longer things are allowed to fester, the worse it becomes for everybody.

This year, thanks to the Government's newfound emphasis on encouraging families to solve their own disputes with the help of a mediator, the ripples could be better contained.

The new emphasis is part of what has been the first significant change to the Family Court since it was established in 1981. It is undeniably about costs, but also comes in the wake of what have been described as "serious concerns" raised by the public, judges, lawyers and counsellors during a comprehensive review of the old system.

For all the media fanfare, however, a number of pretty big ifs and buts remain before success can be declared.

Potentially, the new system under which many family disputes in New Zealand will be resolved could and should do much to help still the social waters.

A new service known as Family Dispute Resolution, or FDR, is among the most significant changes among the reforms.

The Government has said that the new resolution service, which it describes as the cornerstone of the new system, will be required in a majority of family disputes before warring parties have access to the court.

Instead, the emphasis will move to people resolving differences on terms that best suit them, at an early stage, rather than their being compelled into the system to get their problems sorted out after what can be a long, acrimonious and costly process.

As the Herald reported at the time, the Family Court has until now handled 65,000 applications a year.

That's a relatively high number for a country the size of ours, and the new system is expected to immediately cut that number by as many as 4000 as well as cutting the number of affected children by half as much again.

In turn, this will free up the court to deal with cases in which the risk of domestic violence is alleged, while many of the more run-of-the-mill cases will enjoy mediated outcomes without the pressures of a judicial presence.

So far, so good. As the head of the largest body for dispute resolution in the country, the Arbitrators and Mediators Institute of New Zealand naturally welcomes the latest changes, which are expected to save $70 million over the next four years.

But we also realise that this could also be a moment of truth for the profession we represent.

For one thing, if the service is to succeed, the mediators involved will all need to be highly skilled, not only in the general professional sense but in the specifics of understanding of family violence, cultural needs, child development, family law, dealing with highly emotional situations, power imbalances and knowledge of community organisations and support for families. That's a significant and not exhaustive list.

The new system, like any dispute-resolution mechanism, does not work in a vacuum, and nor should it. As the 2003 Law Commission into Dispute Resolution in the Family Court noted, "Parties should enter mediation knowing their legal rights and obligations". Indeed, some families will also need counselling to be able to get anywhere at all in the new environment.

Another problem: Neither legal advice nor counselling are funded under the current scheme.

This is really problematic, and it needs to be seriously addressed in fairly short order if we're not going to see the most economically disadvantaged denied their rights.

Overall, the news still seems potentially good. It could not only help empower families to resolve the dispute at hand, but fine-tune their skills for resolving future disagreements.

If it's not well established, however, it will bring increased misery to families, increase the caseload into the Family Court, cost more for the state and in time turn the negative social ripples into full-fledged waves. We need to get it right in 2013.


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

- NZ Herald

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