“Should Mediation be the First Step in All Family Law Act Proceedings?”
Since June 2006, Australian parties wanting to apply to court for parenting orders have had to attend, or attempt to attend, Family Dispute Resolution (FDR). Similarly, since 2014, the New Zealand Family Court has also had mandatory FDR. In both Australia and New Zealand, parties can seek exemption from attending FDR where there are allegations of family violence or abuse, a risk of family violence or abuse, incapacity to participate effectively, or in circumstances of urgency. Judge Harman’s paper provides a detailed, qualitative survey of his cases over a 3-month period in late 2014. In conducting his survey, the Judge looked at the pre-trial steps in 376 parenting and relationship property cases, examining the role of mediation or conciliation before those cases went to court.
A brief summary of Judge Harman’s recent paper follows. A copy of the full paper can be accessed here
Key Findings
Judge Harman found that the parties had attended mediation before filing in only two of the 80 relationship property matters (participants were not asked whether one or both had wanted to attend mediation, but had for whatever reason not done so).
The rate of applications for exemption from attendance at FDR in parenting cases meant only 19% of parenting matters across this sample had actually attended FDR (and from the metropolitan sample only 13%).
1 The data sample suggested that, apart from exempt cases, when disclosure is provided settlement can be achieved in a significant number of cases (59%).
2 A large portion of the cases studied that were not resolved 6-8 months after filing (39% of “not settled” cases), involved parenting issues. These would already be compelled to attend FDR.