In this new series on Alternative Dispute Resolution (ADR), Nichola Di Muzio, Thynne + Macartney's head of Family Law, takes a look at the evolution and application of different ADR methods used in family law. Today, Nichola discusses mediation.
So I guess you're in court all the time?
Well, no.
People often expect that we, as family lawyers, spend a lot of time in court. However, my practice is more about negotiating and mediating disputes, than fighting them out in Court (once a trial date arrives, after waiting the many months or sometime years for the opportunity of a trial). And, I am not alone. Mediation is the dominant feature of today's family law landscape. Mediation is no longer 'Alternative'.
It was with great enthusiasm that I enrolled in the subject 'Alternative Dispute Resolution' when I was completing Masters' studies at QUT in the late 1990s. Mediation was the new 'talk of the town' and I was keen to learn more.
My few years post admission experience already had taught me that court is not always the best way to resolve family law (or any other) disputes. Delays with the court system, costs of prolonged proceedings, the disadvantage to the poorer or more vulnerable party, and the uncertainty of the outcome, were all issues that plagued our clients. Sadly, those issues have not gone away but have become far worse as a result of reduced funding and greater demands on the system.
I embarked on a course that saw me learn from two well-respected and highly experienced and qualified mediators; Iyla Davies and Gay Clarke.
The Family Court was already conducting 'Conciliation Conferences' with a view to settling property matters at an early stage of proceedings and 'Conciliation Counselling' in parenting disputes. In their paper published in 1991, Iyla and Gay referred to the differences between these processes and mediation.
The main distinctions between these two conciliation processes and mediation are that entry into the Family Court conciliation processes is not voluntary, but compulsory (and true mediation must be a voluntary process), and further, in conciliation, the third party makes concrete recommendations, as opposed to suggestions, concerning solutions. Conciliation is, therefore, less concerned with the empowerment of parties to reach their own conclusion.
At that stage, mediation was something that Legal Aid Qld was doing (in their 'Parenting Conferences'), as were Relationships Australia. Most of my QUT class (including myself) took up the opportunity to undertake a further stand-alone short course offered by the Qld Law Society to qualify as a Law Society Approved mediator.
Fast-forward twenty years and mediation is part of everyday practice. Most courts (Family and otherwise) require the parties to participate in mandatory mediation some time during the course of proceedings. The idea of mediation being a 'voluntary process' has fallen by the wayside, replaced by the notion that, even when compelled to do so, participation in mediation usually provides a better experience and an expedited process for the parties.
In the parenting dispute arena, mediation is required before proceedings can commence, with applicants having to prove that that have attended mediation with an appropriately qualified mediator [a Family Dispute Resolution Practitioner or FDRP] or that they have attempted to do so. The 'proof' takes the form of a Certificate that the FDRP issues. There are some exemptions applicable to urgent applications or (most usually) where Domestic & Family Violence exists.
In addition to time and cost considerations, the less formal nature of the mediation process is a huge advantage to the parties to a dispute who, for the most part, would be confronted by legal rules and jargon for the first time when they enter the litigation process. There is no doubt that the court system can cause those involved (including the judges and lawyers!) severe stress in an already emotion-charged post-separation periods. One of the aims of mediation is to reduce the level of stress between the participants who are more likely to reach agreement in a more comfortable setting.
Mediation works well. Lawyers are comfortable with mediation but there are more 'alternatives' available which have taken much longer to find favour with Australian lawyers and their clients. These remain meandering along their own particular courses, yet to merge into the main stream.
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