Does Family Dispute Resolution really work?

Alternative dispute resolution (“ADR”) is a process that is inherently reliant on an equal power dynamic existing between the parties.[1] Brianna Batey evaluates ADR processes in the family law jurisdiction and their ability to effectively identify and manage power imbalances. She identifies the manner in which power imbalances in mediation ‘can be addressed by the mediation process itself, and by specific mediator strategies and interventions’,[2] with a particular focus on imbalances resulting from family violence. While ADR has been subject to major legislative reforms, there remain gaps in the ability of the process to effectively manage such imbalances and ensure just and fair outcomes for parties involved.

In 2006, the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) resulted in significant reforms to the family law system, in particular, the introduction of mandatory family dispute resolution (“FDR”).[3] The Family Law Act 1975 (Cth) now provides that parties must attend FDR before an application for parenting orders can be made to the relevant court.[4] Further, the courts are prohibited from hearing such applications unless the parties have filed an FDR certificate.[5] The FLA now sets out ‘one of the largest pre-litigation schemes that imposes mandatory attendance at a [dispute resolution process] in Australia’.[6] Mediation is the primary form of ADR used for family disputes.[7]

Whilst mandatory FDR has resulted in approximately ‘a 25% decrease in court filings in parenting matters’,[8] the positive aspects of FDR can somewhat be overshadowed by the potential negative elements.[9] Mediation is not considered to be an appropriate form of dispute resolution where power imbalances exist between the parties.[10] Further, ‘[t]he Family Court has recognised the special problems of power imbalances where violence or the potential for violence exists’. However, the Australian Dispute Resolution Advisory Council have emphasised that ‘FDR is a flexible process that can be adapted to suit the needs of most situations’,[11] and appropriate safeguards may be put in place to effectively manage imbalances between two parties’ bargaining power.[12]

FDR is the ‘process of first resort for family law matters’,[13] and is primarily ‘concerned with providing parents with a safe and effective environment for them to make decisions about the future parenting of their children’.[14] FDR will only provide effective means for parties to achieve positive outcomes where the process is facilitated by skilled practitioners who understand power imbalances and implement appropriate safeguards to manage the impacts.[15]

It is important for litigants to understand that FDR practitioners can address such imbalances through screening and assessment processes, shuttle mediation and the ability to terminate mediation where appropriate. The Family Law Act 1975 (Cth) further provides adequate exemptions from FDR where the parties are unable to resolve their dispute or the outcome would be unfair or unjust.[16]

However, where the power imbalance is a result of family violence, ‘the family law system has some way to go in being able to respond effectively’,[17] and ‘it is essential that more attention be paid to the consequences of violence and its relevance to the way parties negotiate’.[18] The family law jurisdiction will continue to deal with the existence of power imbalances ‘regardless of whether a party engages in mediation’ or is dealt with by the court.[19] Therefore, it is important that gaps in the ability to adequately deal with such imbalances are addressed to ensure the primary goals of FDR may be achieved.

Batey suggests that more comprehensive and updated training is needed of FDRP’s to ensure the primary goals of mediation may be achieved.

If you are experiencing apprehension in going to FDR or in your current FDR, please contact Rowan Skinner & Associates Lawyers to discuss.

[1] S Rice, P Washington, T Signal and N Taylor, ‘An analysis of domestic violence presenting to FRCs at intake and assessment’ (2012) 23(2) Australasian Dispute Resolution Journal 89, 90.

[2] Claire Baylis and Robyn Carroll, ‘The Nature and Importance of Mechanisms for Addressing Power Differences in Statutory Mediation’ (2002) 14(2) Bond Law Review 285, 294.

[3] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (‘Shared Parental Responsibility Act’) sch 1, pt 1, sub-div E; Tania Sourdin, Alternative Dispute Resolution (Thomas Reuters (Professional) Australia Ltd, 6th ed, 2020) 333.

[4] Family Law Act 1975 (Cth) (‘FLA’) s 60I(2)-(3).

[5] FLA (n 4) s 60I(7); Shared Parental Responsibility Act (n 3) sch 1, pt 1, sub-div E.

[6] Sourdin (n 3) 334.

[7] Rachael M Field and Angela Lynch, ‘Hearing parties’ voices in Coordinated Family Dispute Resolution (CFDR): An Australian pilot of a family mediation model designed for matters involving a history of domestic violence’ (2014) 36(4) Journal of Social Welfare & Family Law 392, 393; Rachael Field, ‘Using the Feminist Critique of Mediation to Explore “The Good, The Bad and The Ugly” Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia” (2006) 20(5) Australian Journal of Family Law 45, 46; Shelby Higgs Howarth and Catherine Caruana, Appendix A: Mandatory mediation in family law – a review of the literature (Working Paper No 2, 2017) 8.

[8] Helen Cleak and Andrew Bickerdike, ‘One way or many ways: Screening for family violence in family mediation’ (2016) 98 Family Matters 16.

[9] Field (n 7) 54.

[10] Baylis and Carroll (n 2) 305.

[11] Australian Dispute Resolution Advisory Council, Australian Law Reform Commission Review of the Family Law System ADRAC Response to Discussion Paper 86 (Response Paper, November 2018) (‘ADRAC Response’) 24; Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) (‘Regulations’) reg 29.

[12] Sian Green, ‘Effectively Managing the Impact of Family Violence on Mediation in the Family Law Context’ (2017) 28(3) Australasian Dispute Resolution Journal 155, 158.

[13] Field and Lynch (n 7) 392.

[14] Andrew Bickerdike, ‘Implications for family dispute resolution practice: Response from Relationships Australia (Victoria) to the Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings report’ (2007) 77 Family Matters 20.

[15] Green (n 12) 158.

[16] Australian Dispute Resolution Advisory Council, Principles of ADR (Report, September 2016) 2.

[17] Australian Institute of Family Studies, Evaluation of the 2006 family law reforms (Summary Report, December 2009) 13.

[18] Australian Law Reform Commission, Equality before the law: Justice for Women (Report No 69, April 1994) 120.

[19] National Pro Bono Resource Centre, Alternative Dispute Resolution Assisting people experiencing disadvantage (Final Paper, June 2012) 37.