Turned to Custody

Many are starting to ask whether the Family Court is the best place to settle family affairs.

You may be familiar with the recent story of the prominent political figure and his ex-wife who feuded over the custody of their two dogs in a long-running dispute in the Family Court. Strict suppression orders surround the case, which has apparently since been resolved, but the more usual Family Court scenario – with or without a canine drama thrown in for newsworthy effect – is depressingly familiar to thousands of women.

These are the people who want to be running their lives, companies and homes unencumbered by what in many cases has become an increasingly costly way of sorting out one’s most sensitive personal affairs.

Small wonder that more and more New Zealanders in 2011 are asking if the Family Court is really the most desirable place for such matters to be formally resolved – and now the government, too, is putting the same question to the public.

A recently announced plan to review how the Family Court operates will be a significant test of how those involved in sorting out the affairs of other people are able to address our own challenges, not least how mediators might help ease the strain on a system that is becoming overwhelmingly costly in every sense of the word.

The review, signalled by Justice Minister Simon Power, is to look at ways to improve the court and ensure that its processes are straightforward.

Anecdotal observation, case histories and virtually all relevant research point to the fact that troubled break-ups adversely affect kids, not to mention their parents, which, in turn, has an effect on the wider community. 

The principal Family Court judge, Peter Boshier, recently told the Law Society that improving the existing system offers children involved in cases the court has yet to consider, the best chance of growing up to be functional adults.

With the looming social cost in mind, Judge Boshier has called for the inquisitorial, rather than the adversarial, approach to be used in cases involving kids.

As much as any potential social cost, however, the coming review is also about financial cost.

Announcing the review, Mr Power said the government’s intention is to look at how "a piecemeal approach to family law reform has impacted on the efficiency of the court, as well as ensuring it is sustainable, cost-effective and responsive to the needs of those who use it and the taxpayers who pay for it".

The government is alarmed, rightly, over an annual bill that has blown out from $83.9m in 2004-05, to $137.1m in the past year for which figures are available; a plainly unsustainable increase of more than 60 percent.

Whatever the ultimate outcome of the current deliberations, the country’s mediators (credentialed and experienced practitioners or properly trained neutral parties), who assist in negotiations and conflict resolutions, have an enormous role to play. All the more so if they are brought into the process well before the start of any court action.

Mediation, after all, has the capacity to empower families to reach their own confidential agreements for their own children’s futures. People choose their own mediator, discuss the issues that are relevant to them, and have as much say as possible. And mediation is speedy.

What’s more, mediation – the right kind of mediation in any event – can significantly lessen the state’s financial cost of families pursuing litigation.

And it works. According to one British agency involved in the area, 80 percent of all cases that enter mediation are settled. This figure contrasts shiningly when viewed against the litigation process that by its nature tends to be unpredictable, produces winners and losers and the remedy is blunt and offers limited solutions.

With mediation, one retains control of the process; with litigation, even the best cases are far from certain to succeed.

But mediation and jurisprudence are different things, with one of them holding a clear advantage when it comes to settling family disputes in the speediest, most cost-effective and enduring way.

As one former American judge turned full-time mediator, Michael Streit, put it in a newspaper interview earlier this month while discussing the differences between the two activities: “You’re more isolated as a judge because you have to stay above the fray. In mediation, you establish a trust and rapport with the parties and work them into a dialogue, so both sides are treated fairly. You find out what people want – what they need.”

Given its proven advantages, one of the most important questions that will need to be carefully considered, in light of all this, is whether these mediators should be getting involved in the process only at the point where a warring couple walks through the court doors.

Is it too much to hope that New Zealanders – and the Family Court that was set up to serve them in one of life’s most delicate domestic situations – might yet be better served if one of the results of the coming review will be to allow mediators to do what they do best in the setting where they work best?

Deborah Hart LLB
www.aminz.org.nz