define or identify the issues in dispute or properly develop and exchange settlement proposals. If pre-filing disclosure and mediation in financial proceedings was mandatory, this could encourage a culture of agreement making and avoidance of an adversarial court system. This was the intent of both Section 60I (Australia) and Section 12 and the new FDR Act 2013 (New Zealand) for parenting proceedings.
Judge Harman also considered the impact of legal representation on the process. The settlement rate for cases which went to mediation or conciliation was not much higher than the rate of settlement for cases using lawyer assisted negotiation without mediation. The number of cases settled without filing, or how those matters were resolved, is unknown, including whether mediation might have led to settlement.
As a whole, the data revealed two major pre-filing barriers to settlement (or attendance at mediation), which may impact upon the decision to file:
1 What Judge Harman calls “legal gate-keeping”: disputants in family law cases tend to be both inexperienced and highly emotional. If the lawyers for the parties either don’t suggest mediation, or advocate against mediation, mediation is unlikely.
2 Lawyers seldom consider mediation, let alone attend it, which suggests either a failure to seriously consider mediation as a viable alternative to litigation, or a preference for litigation.
The timing when mediation (or other third party evaluation or intervention) was engaged in, was also found to potentially affect settlement success .
Judge Harman’s view is that the need for modern dispute resolution processes to develop, support and deliver a settlement culture would also obviate against traditional litigious modes of dispute resolution.
In both countries, if mediation has not been attended, or disclosure not completed, then the matter is case managed in the usual way, inevitably involving greater delay and cost.
When the new FDR regimes were introduced, both the Australian and New Zealand governments publicly predicted they would reduce both the costs of litigation to the taxpayers, and lower the financial and personal costs to parents. It was seen that going to FDR rather than Court to work out straightforward parenting disputes would achieve these desired outcomes.
The extent to which these aims have been achieved is still being studied. This survey shows that in Australia, as here, there is some way to go before pre-hearing steps and mediation are fully used by parties, lawyers, and the Courts.
End Notes:
1. These FDR provisions, apply only to parenting order applications.
2. The data pool was drawn from 80 property cases and 296 parenting cases. These included disputes about either parenting or property, or both.