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296 MEDIATION IS A PROCESS, rather than an event, during which a mediator helps parties explore issues and move towards agreement. Proponents of mediation believe it is better than litigation at revealing the needs and concerns of parties, and moving them towards a mutually agreed resolution. The benefit of mediation is its flexibility, allowing for the fact that because no two parties are alike, their resolutions will also be unique.
297 Some people claim that truly voluntary mediation is impossible in a Court setting. Professor Robert Mnookin coined the phrase “bargaining in the shadow of the law” to characterise Court-mandated mediation, or the use of mediation as an adjunct to, or entry into, a system that might eventually yield a judicial determination.[98] We believe, however, that mediation, even with the law as a backdrop, can benefit participants.
Mediation and emotion
298 Family disputes can be highly emotional. Separating parties often experience sadness, regret, and insecurity, as well as bitterness, anger, blame, and a desire for retribution. They must be able to put those feelings aside to resolve their dispute, particularly where children are involved, but this is easier said than done.
299 Mediators have to be aware how difficult it is for parties to let go of these feelings; they must acknowledge their existence rather than ignoring them. Clients, in general, want to feel that the mediator understands them and their fears and anxieties before they are ready to focus on the future. In some cases, the mediator’s acceptance and validation of the parties feelings will not be enough, and parties might benefit from pre-mediation counselling.
Amenability of disputes to mediation
300 It is generally accepted that mediation is inappropriate for couples locked in an intractable dispute, or with a history of domestic violence, alcohol or drug dependency, psychopathology, or extreme power imbalances.[99] The Law Commission for England and Wales warned that:
There are also dangers in relying too heavily upon conciliation or mediation instead of more traditional methods of negotiation or adjudication. These include exploitation of the weaker partner by the stronger, which requires considerable skill and professionalism for the conciliator to counteract while remaining true to the neutral role required ...[100]
301 Some feminists argue that mediation reinforces differences in power that existed before the relationship broke down, and thus disadvantages women.[101]
302 Several studies, however, discredit the claim that mediation always disadvantages women; they show that appropriately conducted mediation can in fact redress some injustices and imbalances.[102] A review of family mediation by the Family Court of Australia comments that:
A small percentage of mediation applicants are considered unsuitable for the mediation process, particularly due to family violence and other bases of power imbalance between ex-spouses. The mere disclosure of potentially “disqualifying” factors does not automatically exclude clients from the service. Instead a careful assessment is made of the extent to which these factors would impair the negotiation process and the couple’s ability for constructive communication that is based upon trust.[103]
303 The review identified factors affecting suitability for mediation, which include:
• whether parties accept that the relationship has broken down;
• the intensity of the dispute, the degree of conflict, and how well parties can communicate;
• the parties’ capacity to discuss matters rationally, and co-operate with one another;
• power imbalances.[104]
304 The reviewers concluded that key determinants of successful mediation are appropriate timing of referrals, and screening to winnow out inappropriate cases (where there is a protection order in place, for instance, mediation should not proceed).
305 The literature suggests that where there are severe power imbalances (including domestic violence), the victim of violence must give truly independent and informed consent to mediation, and that highly skilled mediators or co-mediators are required.[105] No victim of abuse should ever be forced into mediation with the perpetrator. It is important, however, not to freeze victims in that role forever; if someone who has suffered violence feels mediation might help them, this possibility should be explored.
The mediation conference
306 Family Court judges held approximately 3000 mediation conferences in 2000.[106] Mediation is available under the Family Proceedings Act 1980 where a party has applied for a separation or maintenance order, or for a custody or access order. Mediation conferences may also be convened under section 170 of the Children, Young Persons, and Their Families Act 1989 (CYPF Act). Mediation is not available for other types of Family Court proceedings.
307 Before a case reaches trial, a judge will hold a one- to two-hour mediation conference. Only the parties, their lawyers and, if applicable, counsel for the child may attend, but from time to time judges will allow in others. The judge encourages parties to settle their dispute.
308 The mediation conference can be a reality check for Family Court litigants, canvassing possible outcomes if they proceed to adjudication. Some parties settle at the mediation conference and do not proceed to litigation, which can be seen as a successful outcome. Yet it is no measure of the long-term success of such agreements, and not everyone believes this is a good thing. The organisation Lawyers Engaged in Alternative Dispute Resolution (LEADR) comments:
Parties tend to defer to a judge/mediator. This may be because of the office that the judge holds, or because of a sense that the judge “knows best”, or even because they think it wise to keep “onside” with the judge. Lawyers in the Family Court have experienced all these reactions. They can deprive a party of negotiating capacity and ultimate(ly) skew the outcome. They are less likely to occur if the mediator is not a judge.[107]
309 There has been criticism that the Family Court mediation conference model blurs the distinction between adjudicator and mediator roles. As LEADR’s submission states:
LEADR has trained many judges and former judges in mediation. Some make good mediators. But some feel unable, despite training, to shake off the decision-making role that judging requires and to adopt the facilitative approach that is characteristic of much mediation.[108]
310 Our preliminary paper noted that the mediation skills of judges vary. They are trained by a group of judges who were themselves trained by mediators, but at a standard below that required to become a panel member of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ).
Mediation in employment disputes
311 The Employment Mediation Service (EMS) is the first port of call for those in an employment dispute. Parties are expected to attempt mediation before going to a tribunal member or Employment Court judge for a decision.[109] The EMS focus is on resolving disputes and moving on, rather than on attempting to heal fractured relationships.
312 If one party refuses to engage in mediation, the other can apply to the Employment Relations Authority (ERA) for a direction to the party to mediate. If that party still refuses, the ERA may hear the application on an ex parte basis, and costs will be awarded against the absent party.
313 New Zealand has approximately 40 employment mediators, who are fulltime public servants.[110] A few are fluent in te reo and have a good knowledge of Mäoritanga.
314 The EMS mediators come from a variety of backgrounds; experience in mediation was one of the criteria for appointment. Some have formal mediation or dispute resolution qualifications. All have taken a three-day LEADR mediation training programme. Approximately a third are lawyers or people with legal training. Nearly all have employment law experience; for example, many have worked as union advocates. Mediators are selected, where possible, so that overall they reflect New Zealand’s gender and cultural diversity.
315 Parties cannot choose their mediator. In special circumstances, they might be allowed to discuss a preference with the other party and make a request, but there is no guarantee it will be met. More experienced mediators are usually assigned to difficult or protracted disputes.
Employment mediation case volumes and costs
316 The EMS is contracted to provide 7500 mediations a year; since it was set up, it has mediated 10 000 disputes. It is currently operating 20 per cent above its target, conducting approximately 8500 mediations annually.[111]
317 The EMS mediates every type of dispute. If there are concerns about a power imbalance, the mediator will institute safeguards for the weaker party. Approximately 60 per cent of all mediations involve personal grievances, which are mediated in one four-hour session.[112] Single mediations cost an average of $800.[113]
318 The success rate of the EMS, or the proportion of disputes leaving the system, is around 85 per cent. Not all such disputes are necessarily settled; some claims are dropped when legal and bargaining positions are made clear to the parties. Ninety per cent of cases are resolved within 12 weeks from the initial approach to the EMS.
319 When parties agree, the mediator explains the terms of their agreement and its binding nature before parties sign. Once signed, there is no right of appeal and the agreement can be enforced in the District Court or by means of ERA compliance orders.
320 The United Kingdom, Australia, the United States and Canada all use mediation in family law matters, although not without controversy.[114] Views differ on whether mediation is appropriate for every family dispute.
Effectiveness
321 Other jurisdictions have trialled Court-connected mediation.[115] The claimed benefits are that it takes less time and expense than litigation, and that it encourages more comprehensive arrangements for children.[116] A comprehensive US study followed up families randomly assigned to mediation rather than litigation, and found that parents who went to mediation were more involved in their children’s lives and more likely to co-parent.[117]
322 However, the benefits and efficacy of mediation can be difficult to measure. The following section discusses studies in Australia,[118] Canada[119] and the United States that have analysed measures of family mediation effectiveness.
Measuring effectiveness
323 An Australian Family Court study reported a high rate of client satisfaction with mediation, irrespective of whether parties reached agreement.[120] Parties were positive about the mediator’s skills and said the mediator listened to them, identified their concerns, and reflected them during mediation.[121] Many thought the process helped them better understand the other party’s point of view. Some, though, were disappointed that mediation did not have much effect in highly acrimonious situations.[122]
324 A US survey showed 75 per cent were positive about mediation and would recommend it to others. Many said it gave them a chance to put across their point of view and be heard. They also reported that it helped them concentrate on their children’s interests. Sixty-five per cent said mediation was a better option than litigation. Negative comments were usually about limited time for mediation.
325 United States studies conducted in Denver (the Denver study), and Los Angeles, Connecticut and Minneapolis (the multi-city study) revealed that 40 per cent of voluntarily mediated cases settled in full, and a further 20 per cent partially settled. Where mediation was mandatory, between 60 and 70 per cent settled.[123]
326 Participants in a Canadian study rated mediation highly, with 80 to 90 per cent saying the mediator was fair and gave them a chance to express their point of view. Eighty to 88 per cent of those who did not use mediation, however, said they were satisfied with their lawyer’s services. Sixty-four per cent of the mediated cases fully[124] or partially[125] settled through mediation, but of the couples actually interviewed, only 38 per cent said a settlement was reached.
327 In the Canadian study, couples who mediated were four times more likely to agree to joint custody than those who litigated.[126] In spite of concerns that women would agree reluctantly to joint custody because of the cost of contested litigation, couples agreed on joint custody because they genuinely believed it best for their children. These results were reflected in other US studies.[127]
Speedy resolution
328 The Canadian experience suggests mediation is a way of fast-tracking matters to an order. Clients reported that delays increased the anxiety of family breakdown. Reducing the time it takes to reach an agreement and have it embodied in an order, might defuse potential conflict.
Cost
329 The Canadian study found that parties who mediated paid higher legal costs (between $385 and $508 more) than parties who litigated.[128] But this was not the case in Montreal, where the Court retains a staff lawyer for parties to consult. There, legal costs were between $133 and $517 lower for those who mediated.
330 The Denver and Californian studies found mediation was more cost-effective than litigation. Denver couples who mediated spent an average of $1630 on legal fees. Couples who mediated but did not reach an agreement spent $2000 on legal fees. The Californian study found the legal fees of couples who litigated were twice as high as those who mediated.[129]
Compliance with mediated agreements
331 Degrees of compliance with mediated agreements varied in the Canadian study. In Montreal, 97 per cent of couples complied with their agreements, but in Winnipeg mediating couples were more likely to default. In Saskatoon and Saint John there was little difference between groups who mediated and those who litigated.[130]
332 Eighty per cent of clients in the Denver study complied with their mediated agreement, compared with 60 per cent of parties who litigated. In the multi-city study, none of the clients who mediated custody and access matters complained about infrequent access visits, whereas 30 per cent of those who litigated had infrequent access to their children. These studies indicate that parties who negotiate their own agreement are more likely to stick to it.
Post-separation relationship and parenting
333 Most people taking part in the Australian mediation trial felt mediation helped them stand up to their ex-spouse and increased the likelihood of their sorting out future problems without outside help.[131]
334 The Canadian study, however, showed mediation had little impact on post-divorce relationships and parenting. There was little difference in the level of conflict and hostility between parties who mediated their disagreements and those who litigated. Almost 15 per cent of the Winnipeg mediation group had already begun court proceedings to change the mediated agreement, and a further 41 per cent expected to litigate in future.
335 The US studies showed mixed results for re-litigation patterns and post-divorce relations. In Denver there was a lower re-litigation rate, but those in the multi-city study who had mediated were as likely as those who had litigated to seek the Court’s help.[132] The US researchers concluded that although mediation does not encourage re-litigation, it does not deter it. The ongoing parental interaction encouraged by having brokered a compromise at mediation can create more opportunities for parties to come into conflict.
336 We recommend mediation by contracted Family Court mediators as part of the conciliation service. We believe mediation has the potential to resolve disputes faster and more amicably than adjudication. We want to encourage families to resolve disputes themselves in a way that will preserve and enhance the healthy aspects of their relationship and minimise the dysfunctional. Mediation promises to achieve this better than litigation, which reduces direct communication and emphasises parties’ differences rather than their shared interests.
337 We believe mediation should be available to everyone who would otherwise have their dispute settled in the Family Court. This includes guardianship/custody and access issues, relationship property disputes, and family protection and testamentary promises claims. Parties involved in other proceedings, such as adoption, or appointment of a welfare guardian under the Protection of Personal and Property Rights Act 1988, could also use mediation.
338 We do not think mediation useful in mental health matters. There may be no need for a separate mediation process for applications for declarations under the CYPF Act, because the family group conference procedure precedes the opportunity for a judge-led mediation conference.
Recommendation
The conciliation services offered currently by the Family Court should be expanded.
The Department for Courts should contract trained mediators to offer mediation services to Family Court clients.
Timing of mediation
339 Mediation should be something that the conciliation service co-ordinator offers clients. In many cases it would be best for parties to attend an information session or counselling before attempting mediation, but some cases might be suitable for mediation without prior counselling. The conciliation service co-ordinator, in consultation with a mediator, should decide whether a case is suitable for mediation or whether it should be deferred until after counselling.
340 Some cases might involve issues needing urgent resolution by a judge. Once these are resolved, however, outstanding issues might be resolved by mediation. There should be enough flexibility for a judge to be able to refer parties back to mediation.
Legal advice
341 Mediation is no substitute for proper legal representation. The Legal Services Agency pilot of mediation services gives the added protection of legal advice for mediating parties.
342 We do not, however, think it necessary or desirable to have lawyers present at all mediations, because the purpose of mediation is to encourage parties to communicate with one another and resolve their dispute.
343 We recommend parties get legal advice before the first mediation session. This would give them an overview of the legal issues and the law relating to their situation. Parties should enter mediation knowing their legal rights and obligations.
344 Many Family Court disputes, such as custody and access disputes not involving complexities such as relocation, are not legally complicated. Also in this category are many relationship property disputes where the family home is in contention, along with chattels and possibly some savings. If parties received preliminary legal advice and their agreement was later referred to their legal advisors, parties could attend mediation without their lawyers. The extent of preliminary legal advice and work would depend on the dispute and the issues involved.
345 Where matters are more complex, such as relationship property disputes involving businesses or trusts, it might be unproductive to attempt mediation without the parties’ lawyers being present.
346 The Property (Relationships) Act 1976 entitles each party to independent legal advice before an agreement is enforceable; any mediated agreement would have to comply with this requirement.
347 Where parties have managed to agree as a result of mediation, they should, as an additional safeguard, be given separate legal advice to ensure they fully understand what they are agreeing to.
Recommendation
Mediating parties should get legal advice before mediation, and before ratifying any agreement reached during mediation.
Participation
348 We recommend extending the categories of those entitled to participate in mediation beyond the immediate parties to the proceeding. In order to acknowledge the growing number of blended families and the different patterns of family life of Mäori and other cultures, all “main players” may need to be represented at mediation to make solutions viable.
349 Participation could extend beyond kinship. Some situations might involve step-parents or new partners. It might sometimes be beneficial to bring in a professional such as a doctor or a therapist who has been involved with the family, provided privilege and confidentiality issues can be resolved.
350 There should be enough discretion for participation to be decided case by case, following consultation with the parties, and where appropriate, the children.
Recommendation
There must be flexibility about who may attend mediation.
Children
351 Our preliminary paper asked whether children should be involved in mediation. Many submissions supported such an idea as a way of expressing the right of children to be heard under the United Nations Convention on the Rights of the Child.
352 Some, though, pointed out potential drawbacks, such as putting the child in a position that might lead to him or her being pressured by one or both parents.[133] We affirm the importance of children being visible during mediation, but would not want to see a poorly conducted mediation that puts a child in the invidious position of having to “choose” between parents.
353 A properly conducted mediation, where a child has the opportunity to tell his or her parents how he or she feels about what is happening, would focus on children’s views and interests, and could help clarify matters for disputing parents.
354 Having considered the arguments for and against child participation, we favour enough flexibility to allow participation to be decided case by case.
355 There are several ways children’s views can be ascertained and represented. The question is which form of participation is most appropriate. In some circumstances, it might be appropriate for children to attend part of a mediation, but we do not envisage children being present as a matter of course. The mediator should meet with the child or young person, or consult them through a counsellor or counsel for the child, to find out whether they wish to participate in mediation and whether this is desirable.
356 Another option might be for children to prepare a statement of their views and wishes to be conveyed to the parents during mediation.
Recommendation
Children or young people with enough maturity to have a point of view and to be able to express it, should have their views sought and taken into account in the mediation process.
The mediator, together with the counsellor, should consider whether children or young people want to be involved in mediation, and whether it is desirable that they should.
Child participation could be encouraged in several ways. Mediation should be flexible enough to ensure the child’s voice is heard whenever possible, on matters affecting them. But a child who expressly does not want to be involved must not be compelled. Some of the ways children’s views could be represented are:
• children are present during part of the mediation;
• children ask someone they trust to state their wishes at the mediation;
• a counsellor meets with the child and passes on his or her views and wishes to the mediator, either verbally or through any statement or pictures the child may want to execute;
• the mediator meets with the child to determine his or her views and relay them to the parents.
Potential savings
357 The extent to which the State should fund mediation services must be considered. If we accept that more than 90 per cent of parties coming to court settle without judicial intervention, one might ask whether the State should fund mediation. Alternatively, should the State fund mediation only when it is apparent that the dispute will need a hearing if there is no other intervention? Or can we safely assume that those who manage to settle before the hearing anyway are unlikely to seek mediation?
358 The answers to these questions depend on how one measures the success of mediation: by how efficiently resources are used, or by how participants rate the qualitative experience.[134] Mediation benefits participants because it is more responsive to their needs, less formal, and easier to access than litigation. It is potentially cheaper for the parties, and should reduce the number of cases going through to litigation.[135] We hope it might encourage parties to see the benefits in maximising shared interests, particularly where children are involved.
359 Because we see mediation as an adjunct to current procedures, we would expect there to be fewer judge-led conferences because more disputes would settle at mediation and not proceed to adjudication.
Recommendation
We recommend trialling mediation services and monitoring their total cost, so as to compare them with similar disputes being adjudicated, in order to assess quantitative and qualitative aspects of mediation. The study could compare cases in a court running a mediation pilot with similar cases under the current Family Court process.
360 Australian Family Law Rules describe a family law mediation conference:
(a) as a decision-making process in which the approved mediator assists the parties by facilitating discussion between them so that they may:
(i) [c]ommunicate with each other regarding the matters in dispute; and
(ii) [f]ind satisfactory solutions which are fair to each of the parties and (if relevant) the children; and
(iii) [r]each agreement on matters in dispute.[136]
361 There are many types of mediation.[137] More traditional models see the mediator as an impartial facilitator who avoids influencing the outcome and will accept any decision parties reach.[138] The types of mediation described here are techniques that experienced mediators can call on to help resolve family law disputes; they will differ according to the dispute being mediated and the capacity of the parties to use the process.
362 We are not in favour of prescribing a specific model, but suggest that therapeutic mediation might be useful in family disputes requiring more intervention than most.
Therapeutic mediation
363 The therapeutic mediator helps participants understand the mediation process, and facilitates co-operative arrangements known to work well for families.[139] The mediator might also offer ongoing support as the family adjusts to its new circumstances. This model lends itself particularly to negotiating parenting plans; it helps families draw up new arrangements that ensure both parents take an active and constructive part in their children’s lives. Therapeutic mediation is pragmatic: the mediator focuses parents on the practical implications of their plans.
364 Therapeutic mediation usually works through the following phases: assessment; education; advocacy; facilitation of communication; and ongoing support.[140]
Assessment
365 The assessment process (which we envisage being initially carried out by the conciliation service co-ordinator or counsellor) determines whether parties are ready for mediation and whether there are any contra-indications. It should take the following factors into account:
• the extent to which parties have accepted the end of the relationship; the degree to which they can separate past relationship issues from current and future parenting issues; and their willingness to co-operate;
• their current relationship; the level of hostility; whether there is or has been domestic violence; whether there are power and control issues; and, whether one party might use mediation to manipulate the other or stall the process;
• the relationship between child and parents, and whether there has been abuse;
• what parents expect and want in their relationships with their children.
Education
366 To be able to mediate, parents need information about the divorce process and children’s needs, and communication and problem-solving skills. It should be made clear to them that shared parenting agreements must answer the child’s, not the parents’ needs. Helping parents discover what these needs are can focus them on arrangements that will suit their children.
367 Information sessions demonstrating communication and problem-solving skills help prepare parents for mediation, as well as equipping them to negotiate inevitable changes in their parenting lives. Chapters 5 and 6 recommend such information be offered to all separating parents.
Facilitating negotiation
368 The core function most people associate with mediation is facilitating negotiations towards an agreement, whether it relates to a parenting plan, living arrangements, roles, responsibilities and activities, property issues, or how a relative who is older or infirm might be cared for.
Ongoing support and troubleshooting
369 Once a plan has been implemented, the mediator can help resolve any practical problems that might arise, in the hope of avoiding repeated litigation over apparently minor issues.[141]
Key players
370 We suggest the conciliation services co-ordinator carry out the information function during an intake interview, which is discussed in chapter 2.
371 The second and third functions could be covered by a parenting information programme, and materials such as booklets, videos and website information.
372 Facilitating negotiation and ongoing support could be carried out in the context of mediation. Another option would be to have the conciliation services co-ordinator, counsellor or psychologist offer follow-up assistance to parties having difficulties with parenting plans negotiated during mediation.
Current training
373 Mediation has evolved dramatically over the past 20 years; it is now a well-established academic discipline with an extensive research base. General training and education programmes leading to mediator qualifications are available in New Zealand.
374 Mediation is taught in several New Zealand university law faculties and business studies departments. The Massey University Dispute Resolution Centre offers comprehensive one- and two-year, graduate- and postgraduate-level courses. Students can take courses extramurally, but must attend an eight-day residential practicum, and five-day block courses where they develop practical mediation skills. These are AMINZ-affiliated programmes.
375 Several New Zealand bodies offer mediation training, including LEADR. The three-day LEADR course is an intensive weekend workshop during which participants develop practical mediation skills.
376 It is vital that mediators be appropriately trained and supervised, and have the knowledge and skills necessary to work with Family Court clients; the success of mediation depends on it. Using lesser-trained mediators could doom a proposed mediation scheme.[142] As a review of Australian Court-annexed mediation services stated:
Mediation practiced badly can be detrimental to participants and is likely to waste resources for the parties and for courts and tribunals.
... A mediator who is not skilled – or who is not sufficiently skilled or qualified to handle a particular dispute – will find it hard to achieve these outcomes. The parties are then unlikely to have a good experience of mediation, are unlikely to achieve settlement of appropriate issues or to be inclined to use mediation again. Costs to courts and tribunals will increase. Complaints may be generated or parties may decide to [“]lump[”] an unfair agreement. The mediator may be unaware of the power relationships between the parties and how to handle them appropriately so that one party may feel pressured to accept an unfavourable agreement. 143
377 Enthusiastic amateurism is no substitute for the training and experience demanded by the social and emotional complexities of Family Court cases.
378 Should the Government water down our recommendation and permit lesser-qualified people to provide mediation services, we would oppose mediation as a form of Family Court dispute resolution.
Specialised training
379 As well as core mediation skills and professional affiliation, Family Court mediators would need specific Family Court training covering the following topics:
• family systems theories and child development;
• gender awareness;
• domestic violence and power imbalances, and how to deal with unequal bargaining positions;
• how to deal with highly emotional clients;
• the challenges of dealing with unrepresented clients;
• disability awareness;
• knowledge of tikanga Mäori
• knowledge of other cultures and cultural practices;
• knowledge of community-based organisations and support groups offering families help;
• basic knowledge of law applying to Family Court disputes;
• case management and Family Court processes.
380 We recommend that a special Family Court committee design this course. The committee should draw on the full range of professional Family Court experience: judges, counsellors, social workers, psychologists and lawyers, along with representatives from AMINZ and/or LEADR. For ease of access, the course should be offered at least in Auckland, Wellington and Christchurch.
Appointment and selection of mediators
381 Mediators would not be appointed to Family Court work without an accredited mediation qualification, and completion of the specialist Family Court course outlined above, to prepare them for working in the Family Court.
382 The special Family Court committee proposed above would approve an appointment once a mediator had successfully completed the course.
383 The professional mediation bodies as well as the Family Court committee could formulate family mediator standards of practice and a code of conduct.
384 Some mediators will inevitably be more skilled than others, and we envisage the more experienced mediating more complex cases. The Family Court co-ordinator will play an important part in matching mediator skill and experience to dispute.
Supervision and development
385 Trained, experienced mediators should supervise new mediators.
386 Australian Family Law Regulations require family mediators to undertake at least 12 hours of continuing education in child and family mediation every year. We believe there should be a similar requirement in New Zealand.
Recommendation
Only fully trained and accredited mediators should conduct family mediation.
Family mediators should have additional Family Court training in the areas outlined below:
• family systems theories and child development;
• gender awareness;
• domestic violence and power imbalances, and how to deal with unequal bargaining positions;
• how to deal with highly emotional clients;
• the challenges of dealing with unrepresented clients;
• disability awareness;
• knowledge of tikanga Mäori
• knowledge of other cultures and cultural practices;
• knowledge of community-based organisations and support groups offering families help;
• basic knowledge of law applying to Family Court disputes;
• case management and Family Court processes.
Family Court mediators should have frontline mediation experience, or be supervised initially by an experienced family mediator.
Mediators should undertake ongoing education in child and family mediation.
Contracted versus employed mediators
387 Mediation services can be provided in several ways. The EMS, Tenancy Tribunal and Disputes Tribunal mediators/adjudicators are permanent employees. The Health and Disability Commissioner, the Privacy Commissioner, and the Environment Court all contract mediation services, as does the Medical Council, for disputes arising under the Medical Practitioners Act 1995.
388 Our preference is for contracting services from mediators who are working simultaneously in the community, because:
• mediation encourages people to solve problems without resorting to the Family Court and expecting another person or system to solve their problems for them;
• it would give a range of people better access to mediation;
• Court-based facilities are under pressure, and it is unlikely the Government would want to construct new facilities around the country; even should there be appropriate Court facilities, Court-located mediation might inhibit some clients;
• community facilities are likely to be more user-friendly than court-based facilities; there should, ideally, be comfortable rooms, whiteboards and flipcharts, tea and coffee facilities, and office and communications equipment so agreements can be processed and copied for parties to take away to consider, and discuss with their lawyer;
• community-based mediators would be flexible about the timing of mediation appointments; if mediation is progressing well, parties might want to continue outside nine-to-five office hours.
389 Good mediators may prefer to conduct family mediation as part of a mixed mediation practice. The LEADR sees the contracting of mediation services as having the following advantages:
• Greater flexibility and choice allowing for a more diverse and changing “panel” of contractor mediators.
• Diversity in the composition of the panel is attractive. Mediators need to be able to “translate” for the parties to enable them to hear each other. This requires an empathy with the class, culture and gender of the parties.
• The diversity of the “panel” of contractor mediators would allow more sophisticated matching of disputes and mediators.
• Mediators of a high standard could be contracted on an ad hoc basis. Qualifications, experience and accreditation/professional organisation would be required.
• A higher standard of service would be achievable as:
(a) the maintenance of professional standards would be overseen by the professional body which the mediator is affiliated (to); and
(b) contractors would have private professional reputations to maintain.
• Contractor mediators would not become “institutionalised” and would be less likely to be perceived as “institutionalised” by the parties.
• Private mediators would be less likely to be concerned by “success” rates statistics than with durable outcomes.[144]
390 We agree with these points. If available mediators came from a permanent in-house pool, they would risk being accused of insider capture. It is also possible mediators might not want to devote themselves to Family Court work because they would not want to give up their practices and the diverse work they currently undertake.
391 Another issue is burn-out of those conducting many family mediations. We have been told of Court-appointed psychologists suffering burn-out, and we assume mediators would be similarly vulnerable. The risk would be exacerbated by the increased exposure to Family Court work arising from permanent employment as Family Court mediators.
Recommendation
The Family Court should contract mediation services from approved mediators.
392 The provision of non-judge-led mediation raises the question of what would become of the mediation conference procedure now provided under the Family Proceedings Act 1980.
393 We do not propose abolishing the existing judge-led mediation conference. It is a valuable opportunity to define and limit issues, reality test each party’s position, prioritise, and in some cases, conclude the dispute by a consent order.
394 We believe the judge-led conference might be better characterised as a settlement conference.
395 Judges should also be able to conduct settlement conferences for other kinds of proceedings; they would be particularly appropriate for Family Protection Act 1955 and testamentary promises claims.
Recommendation
Judge-led mediation conferences should continue, but be renamed settlement conferences to emphasise their differing role and dynamics.
Settlement conferences should be available but not mandatory in all family law proceedings.
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