Retention of Lawyers in Family Court Mediation
will nullify Mediation process

The indication by the Justice & Electoral Select Committee that it will recommend retaining Lawyer for Child Lawyers in the early stages of Mediation is a guaranteed way to completely nullify the Alternative Dispute Resolution Mediation process proposed by the Family Court Review, says Steve Taylor, a Social Service Outcomes Researcher who presented a Family Court service outcomes submission to the Committee.

“To attempt to merge adversarial parties such as Lawyers within a conciliatory Mediation setting has already been tried, and failed in other Family Court jurisdictions worldwide, and there is plenty of local Practice-based evidence that graphically illustrates that when Lawyers sit in on Mediation, the possibility of the Mediation parties securing a mutually agreeable settlement markedly decreases”.

“What typically happens is that the Lawyers will sit with their client, and the Mediator sets down the process rules of the Mediation. The Mediation begins, and the moment that one of the Lawyers believes that the Mediation is going against their client, they interrupt and attempt to over-rule the Mediation process, and encourage their client to abandon the Mediation and to take the matter to Court”.

There is a reason that Mediation has a 36% better success rate than arbitrary litigation (1), and that reason is that Lawyers are absent from the process. If the Ministry of Justice folds on its original premise of sidelining Lawyers, owing to non-evidential scaremongering by Family Court Judges and Lawyers, then they can kiss goodbye to any of the benefits that an Alternative Dispute Resolution process will bring – ADR doesn’t work nearly as well when there is an adversarial influence upon the Mediation process.

This conclusion was affirmed in a 2010 (2) Canadian study that illustrated when Lawyers were present in Mediation, parties to the dispute viewed their Mediators to be somewhat less useful. Second, parties were less likely to reconcile with each other when Lawyers were present.

In a 2007 New Zealand study which assessed Family mediation, Lawyer for Child interviewees admitted that they did not respect Mediators who did not have legal training, became frustrated with the Mediation process, and saw themselves as being equally capable of mediating issues between family members, despite also admitting that many of those they had interviewed as Lawyer for Child had not even taken the time to meet with parties to the dispute in question.

It was thus no accident for the Ministry of Justice to discover in its own 2011 review of Consumers who used the New Zealand Family Court that 61% of respondent’s lawyers had advised them to take Court action in the first instance, as opposed to Mediation.

The Ministry of Justice needs to go where the evidence leads – which is in the opposite direction of the Family Court Judges, Lawyers, and special interest lobby groups who are attempting to derail the implementation of evidence-based Family Court policy via hysterical scare-mongering and manufactured crisis if the reforms were to go through unchanged.

The Ministry also needs to remember that the same parties who are now baying for the status quo, are also the same parties who presided over the fractured mess that now represents the Family Court system – quite why the Ministry would seek the wisdom of those whose service outcomes have shown to be simply pitiful, almost beggars belief” says Mr Taylor.

(1): Shaw, L. (2010). Divorce Mediation Outcome Research: a Meta-Analysis. Conflict Resolution Quarterly 27 (4) 447-467.

(2): “The Negative Impact of Attorneys on Mediation Outcomes: A Myth or Reality?” by Jean Poitras, Arnaud Stimec, and Jean-Francois Roberge. Negotiation Journal, 2010.
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