Submissions have just closed on a controversial Bill
for radically overhauling the Family Court system. Deborah
Hart, the executive director of the Arbitrators and Mediators'
Institute of New Zealand, sees much promise but also dangers in
what is planned.
An article published recently in Britain's Daily
Telegraph about the extraordinarily bitter lengths some
estranged couples go to to settle old scores will have come
as little surprise to anybody in the mediation profession.
No, not even the story about the angry client who let loose
the handbrake of her ex's Mercedes and sent it over a cliff.
Or the yarn about the woman who went naked under a fur coat
into her (soon-to-be-ex) husband's office, where he was in a
meeting with important Japanese clients, throwing it off and
shouting, ''This is what he's given up!''
In New Zealand, as in Britain, many of those of us who work
in the area see similar episodes - in intensity if not actual
detail - within this country's traditionally adversarial
system. Which is why, thankfully, both countries are in the
process of overhauling their systems.
While some of the more extreme stories about what happens
during domestic bust-ups can be darkly amusing, there's
nothing funny about what happens to the most vulnerable
people so often caught in their wake: the children.
The new emphasis in New Zealand marks the first significant
change to the Family Court since it was established in 1981.
To be sure, it's about reining in public spending on the
current system. But it 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
over the past year or so.
The Family Court has until now handled 65,000 applications a
year. That is a disturbingly high number for a country the
size of ours. The new system is expected to immediately
reduce that number by as many as 4000, as well as cutting the
number of children affected by half as much again. Of course,
challenges remain, not least the implementation of a new
Family Dispute Resolution service, or FDR, which is among the
most significant new proposals.
The Government has said the new resolution service will be
required in a majority of family disputes before most 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 court system to
get their problems sorted out after what can be a long,
acrimonious and costly process.
In turn, this is meant to free up the court to deal with
difficult cases including those 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
As the head of the largest body for dispute resolution in the
country, the Arbitrators and Mediators Institute of New
Zealand, I naturally welcome the emphasis on families being
encouraged to solve their own disputes, with the associated
savings in costs for the Government and disputing parties.
But this could be a moment of truth for the professionals we
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.
The new system, like any dispute-resolution mechanism, does
not work in a vacuum. 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 issue
yet unresolved: neither legal advice nor counselling is to be
funded in anticipation of mediation.
This is really problematic. It needs to be addressed in
fairly short order if we are not going to see some of our
most vulnerable, especially the youngest, disadvantaged.
Overall, though, the news still seems potentially terrific.
The proposed new order could not only help empower families
to resolve the dispute at hand, but just as importantly,
fine-tune their skills for resolving future disagreements.
If it is not well established, however, it will bring
increased misery to families, increase the caseload into the
Family Court, cost more for the State and increase the store
of those out-of-control break-up stories we read and know
about. We need to get it right.