Compulsory mediation: prepared for the paradigm shift?
Andrea Cotter-Moroz
8 Garfield Barwick Chambers 8th Floor 53 Martin Place Sydney NSW 2000
Abstract:
We witness an emerging trend – parliament passing laws requiring parties to attend mediation before commencing legal proceedings. Recently, the Family Law Amendment (Shared Parental Responsibility) Act 2006, effective from 1 July 2007, introduces compulsory dispute resolution (with limited exceptions) for parties applying for parenting orders. Significantly, the Act introduces new concepts for practitioners including registration of family dispute resolution providers (“FDRPs”); the requirement that FDRPs issue a certificate (of which there are 4 types); and removes statutory immunity. The Act also regulates the process and requirements of dispute resolution and the obligations and status of FDRPs. Does this model represent a paradigm shift?
This paper analyses the obligations and the protections under the Act. In particular, the paper focuses on four significant challenges: the role and purpose of certificates; issuing a “not genuine effort” certificate; when family dispute resolution commences; and the loss of statutory immunity. The author argues these challenges face us all as the paradigm has already shifted.
The author is a lawyer (and an FDRP) so bias is acknowledged at the outset. Her objectives are to heighten awareness of these challenges, share some observations from practice and look for strategies to ease the transitions already underway in practice.
Practitioners embracing the opportunity to provide compulsory dispute resolution face the challenge of adapting their practices and mastering new competencies to meet detailed, and onerous, legislative requirements. This session will be of interest to all practitioners. The future is here, now!
Keywords:
Compulsory mediation, family dispute resolution, family dispute resolution practitioner, accreditation, registration, section 60I certificates, family dispute resolution certificates, genuine effort, statutory immunity.
Introduction
In this paper, I examine the complex matrix of obligations and protections controlling the delivery of family dispute resolution (“FDR”) processes and requirements of service providers introduced by the recent Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“SPA Act”). I argue that the inclusion of such extensive criteria is used as quality assurance and consumer protection mechanisms to ensure consistency, including appropriate assessment, in the delivery of family dispute resolution services as well as measurable standards competence of service providers. It is my proposition that this high level of statutory regulation of ADR services will become a feature of our dispute resolution landscape, as we embrace mandatory pre-litigation dispute resolution. But first a disclaimer, this does not purport to be a learned exploration of the issue.
Mediation is here to stay
Since its relatively innocuous inception in 1980, with the Community Justice Centres (Pilot Projects) Act (NSW) introducing mediation for small disputes in NSW, the rush by governments to introduce ADR procedures into the traditional legal system has been described by Prof. John Wade as a “legislative avalanche”. In the mid 1980s lawyers recognizing the benefits of ADR for commercial disputes also began to influence the development of the ADR landscape. For example, ACDC commenced operating in 1986 and LEADR in 1989. The establishment of these and related ADR organizations and independent advisory bodies such as NADRAC provided an infrastructure which has added momentum to the legislative avalanche, so that by 1998, in Queensland alone, there were 28 different Acts or regulations with provided ADR, typically mediation.*
The momentum continues. The government lens is focusing on the increasing importance of ADR processes and value that skilled ADR practitioners can add to the traditional adversarial methods for resolving disputes in courts. On 4 August 2008, the NSW Attorney General, John Hatzistergos announced his recommendation of the appointment of solicitor, Julie Ward, to the bench of the Supreme Court of NSW. Ms Ward is the State’s first female solicitor to be appointed directly to the NSW Supreme Court. In his media release, the attorney referred to Ms Ward’s experience and qualifications and said: “[Ms Ward] is an accomplished mediator and has worked extensively in alternative dispute resolution.”
On 7 August 2008, the Commonwealth Attorney-General, Robert McClelland delivered a speech to the Australian Institute of Administrative Law Forum. He advocated a shift for our entire civil justice system from an “adversarial culture” to more of a “resolution culture”. The attorney reiterated his priority to ensure that all Australians have access to justice and expressed his concern about rising costs creating barriers to accessible justice. In addition to outlining the Government’s plans to alleviate these problems through changes to the Legal Services Directions, which would promote the use of ADR, the attorney specifically referred to his request to NADRAC to examine strategies to remove barriers to ADR by providing incentives to promote its use, as an alternative to and during litigation.
The sceptics can no longer doubt that ADR processes, and mediation in particular, will continue to establish themselves as integral parts of our legal system. Notwithstanding the continuing philosophical debate surrounding the merits or otherwise of compelling parties to attend and/or participate in mediation, generally considered a voluntary and consensual process, mandatory referral to mediation is not a new concept.** Similarly, in some jurisdictions, the requirement that parties engage in pre-action procedures including mediation as a precondition to litigation is not new. For example, pre-litigation mediation is generally compulsory for personal injury claims in Queensland; workers compensation common law damages claims in NSW; possession or enforcement actions under a farm mortgage in NSW; and retail leases in NSW and Victoria. What is new is the complex matrix of statutory regulation controlling the delivery of dispute resolution processes and requirements of providers of these processes, epitomized by the changes introduced by the SPA Act.
*Wade J, Current trends and Models in Disputer Resolution, Part II, (1989) 9 Australian Dispute Resolution Journal 59 at 61.
**Australian Institute of Judicial Administration (Feb 2005) Case Management Seminar Report, pp 9-10 & Appendix 1, pp 26-28; National Alternative Dispute Resolution Advisory Council (Nov 2006) Legislating for alternative dispute resolution, Chapter 6 (“NADRAC Report”).
Role and Obligations of FDRPs
In a recent article, Rae Kaspiew suggests that the FDRP assumes a greater role as the “gateway” to the reformed family law system, and that their role represents a direct interface with the legal system*. Presumably, this is because of the statutory obligations imposed on FDRPs. Essentially, the Family Law Act 1975 (Cth) (“FLA”) and the Family Law Regulations 1984 (Regs) provide the statutory matrix regulating the provision of family dispute resolution services.
In summary, FDRPs have the following professional obligations**:
? Accreditation and inclusion on the Family Dispute Resolution Register –s 10G and Rules
? Providing family dispute resolution certificates – s 60I(8), Reg 62A
? Providing information
· on family dispute resolution – Reg 63
· on services that assist reconciliation – s12G
· in cases involving family violence or child abuse – s60J
· about parenting plans – s63DA(1) –(3), s63C(2)
? Meet confidentiality and admissibility requirements
· Confidentiality – s10H
· admissibility – s10J
? Requirements for providing family dispute resolution
· assessing suitability of family dispute resolution – Reg 62
· obligations of family dispute resolution practitioners – Reg 64
· avoiding conflicts of interest – Reg 65
? Ongoing professional development requirements
? Ongoing registration administrative requirements
Is FDR the same as mediation?
The terms FDR and FDRP are defined in s10G and 10F of the FLA, respectively. Under s 10F FDR is defined as:-
“a process ( other than a judicial process):
(a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and
(b) in which the practitioner is independent of all the other parties involved in the process.”
This definition is not in the usual terms of the definition of mediation as:
“a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement” ***.
*Kaspiew R, Australian Institute of Family Studies (2007): Advent of Compulsory Family Disputre Resolution: Implication for Practitioners, Family Relationships Quarterly Issue 6 at p 6.
**For details see FLA, Regs and Australian Government/Attorney-General’s Department (2008) Family Dispute Resolution - Practitioner Obligations . Available at:http:// www.ag.gov.au
*** For example see NADRAC Report: Appendix 1, Glossery of ADR Terms, at p 104.
Do the differences in definition and nomenclature (viz. “FDR” as opposed to “mediation) indicate that FRD is a different process to mediation? Are “FDRPs” different creatures to “mediators”? In my view these differences are real and substantive, clearly reflecting the importance of the role and obligations of a practitioner (FDRP) delivering services (FDR) in compliance with the requirements of FLA and Regs, including registration; issuing of family dispute resolution certificates (“s60I certificates”); and the providing specific information – all of which are integral parts of the role of an FDRP. This is in sharp contrast with those practitioners (mediators) who provide dispute resolution services (mediation) to people with similar disputes, but who provide their services outside the complex matrix of the FLA and Regs. The latter (mediators) therefore cannot issue s60I certificates; are not required to provide specific information or to comply with other arguably onerous requirements. By analogy, it is my view that the process of FDR differs from mediation because of the regime imposed by the FLA and Regs.
Currently, both dispute resolution pathways (FDR and mediation) are available to people affected by separation and divorce. However, whether both pathways should and/or will continue to be available in the arena of the resolution of family disputes, and especially disputes concerning children, is an issue that has not received much attention to date. At present, I am quite comfortably sitting on the fence, but my natural (pro-choice) inclination is to support the proposition that both pathways should remain open.
It is interesting that the NADRAC definitions appear to use the term “dispute resolution practitioner” as a generic term and then identify the type of practitioner by the type of ADR process involved. Thus “arbitration” is provided by “the arbitrator”; “mediation” by “the mediator”; “facilitation” by “the facilitator” and so on. Is the use of the generic term significant or simply tidying up terminology?
W hat is happening with FDRP a ccreditation ?
An individual must meet the accreditation requirements set out in the Regs to become an accredited FDRP. The current Accreditation Rules, introduced on 1 July 2007 were an interim measure until a new accreditation system based on a set of nationally consistent standards (“the final Accreditation Rules”) was developed and phased in. The final Accreditation Rules, which will take effect on 1 July 2009, are based on new competency based qualifications (Vocational Graduate Diploma in Family Dispute Resolution) that have been developed Community Services & Health Industry Skills Council for the family relationships sector. It is expected that once the final Accreditation Rules are implemented, all FDRPs will be required to meet the final rules by 1 July 2009 in order to become or remain registered and issue family dispute resolution certificates.
The role and purpose of family dispute resolution certificates
Since 1 July 2007, pre-filing attendance at FDR in most parenting matters is required as, subject to limited exceptions, a court cannot hear an application in a parenting matter unless the person applying to the court files a s60I certificate provided by a FDRP. The FLA specifies four types of certificates that may be provided by FDRPs which may be described as:
? non-attendance certificate – s60I(8)(a)
? not appropriate certificate – s60I(8)(aa)
? genuine effort certificate – s60I(8)(b)
? not genuine effort certificate – s60I(8)(c)
The role and purpose of s60I certificates is only one of the challenges facing FDRPs grappling with the practical implications and implementation issues arising from the complex statutory matrix introduced by SPA Act. Considerable guidance has recently been provided by the Attorney-General’s Department (“AGD”) including a series of FAQs on its website.* In summary:
? s60I certificates simply relate to the process of filing and nothing more and is not a case management option for the court seeking additional information
? are like medical certificates, indicating an individual’s FDR “health” at a given time, so may be fluid and it is possible that a particular case has have multiple certificates issued in relation to it
? treatment of multiple certificates is a matter for the court and not FDRPs
? whether or not an exemption applies is a matter for the court and it is not the role of FDRPs to advise or assess eligibility for an exception
? FRDPs only provide appropriate information to prospective clients as to what circumstances need to exist for a party to seek an exemption
? role of FDRPs is to issue the appropriate type of s60I certificate using their own professional judgment, assessing each case on its merits
? in assessing the type of s60I certificate to be issued, FDRPs may need balance competing
issues such as grief and loss, mental health and other issues apparent in one party against the other party’s need to access FDR in a timely manner and also be aware that it is sometimes to the advantage of a party to delay engaging in FDR
? FDRPs do not have to issue a certificate at the conclusion of the FDR process, unless a party specifically requests it
? although there is no obligation to do so, it is good practice that if a certificate is issued, it should be issued to all parties involved in the FDR process
? because a party is at liberty to request that a s60I certificate be issued up to 12 months after the FDR process, record-keeping is important so that FDRP can issue the appropriate certificate
? requirements under Reg 62A(4) for FDRPs are not meant to be onerous
? before FDRP is entitled to issue a non-attendance certificate FDRP must be satisfied that two contacts (including one in writing) have been made, and reasonable appointment times offered, and the party advised that certificate may be taken into account by the court which may then refer parties to FDR and/or award costs