When not to negotiate

Mediation or negotiation in family disputes, while attractive in principle, can often be ineffectual, and at worst, counterproductive. In the 1989 film, The War of the Roses, Barbara and Oliver Rose were in such extreme conflict over their dream house, they eventually killed each other. Only judicial intervention could have stopped the carnage.

The importance of dealing with divorce in the best possible way when one-third of Australian marriages fail is clearly crucial to the well-being of the community. Over the past 25 years, family disputes in Australia have been increasingly resolved through mediation and negotiation, rather than litigation. Since the mid-1990s, "Alternative Dispute Resolution" (ADR) has become the most common way to resolve family feuds.

In July 2007, the Family Law Amendment (Shared Parental Responsibility) Act, took that one step further, heralding a major change in the way family mediation operates in this country. Today, nearly all divorcing couples with children are not just encouraged - but required - to take part in at least one session with a family mediator before an application for a parenting order can proceed in court.

This transition to compulsory ADR has been very fast when compared to the gradual changes normally characterising common law. Certainly a major factor for its rapid introduction has been the huge increase in the breakdown of family relationships, resulting in excessive workloads for courts.

But the major focus on the perceived benefits of ADR - its lower cost, speedier decisions and added control it offers disputants over disagreements and solutions - has come at the expense of recognising its problems. The rationale that parties who are initially unwilling to mediate will eventually settle is not only unsound, but does not deal with other goals in the civil justice system, such as truth, correctness, openness, transparency and accountability. The benefits of ADR are only valid so long as the procedure is truly voluntary.

In reality, parents often feel coerced into accepting shared parenting plans out of need, fear, ignorance, guilt or low expectations. Compelling parties to mediate fundamentally undermines both the fairness and effectiveness of the process to the point where it can be no longer legitimate. A good faith requirement exists in the 2007 amendment which includes the need for participants to make a ‘genuine effort' at resolving the dispute. Unless disputants are certified as making this ‘genuine effort,' they cannot proceed to a judicial decision.

But how do we measure the notion of ‘good faith' and ‘genuine effort'? And who has the responsibility for making such judgements? This is the most contentious aspect of the changes to Australian divorce laws. Some couples make very little effort to reach agreement, but are still issued with a certificate that allows them to proceed to court. They still want their ‘day in court' and only pay lip service to the need for ‘good faith' negotiations.

Family dispute mediators, for their part, aim to resolve a dispute, rather than assign blame. Some do not have the rigorous training and experience formerly held by court mediators. If they are to become family dispute resolution practitioners, weighing evidence and assigning blame, then they run the risk of duplicating the court system. Paradoxically, this leads to not only increased costs, but also to anger and resentment from the disputants, who have everything at stake.

True, there is provision to exempt certain cases from the compulsory nature of ADR, such as when domestic violence is alleged. But an informal exemption is not always sufficient to ensure that this never happens, especially as family violence is often kept secret. A survey conducted last year by the Australian Family of Studies found that a year after the amendment was introduced, many women with apprehended violence orders were forced into mediation with their partners, where further threats of abuse occurred.

What's more, anecdotal and preliminary statistics with family mediators suggests that the introduction of mandatory family mediation in Australia is counteracting one of its main objectives because we now have lower settlement rates than previously occurred. Once couples were compelled, rather than given a choice to mediate, only about 50% to 60% of them reached full settlement. That compares to around 80% when mediation was voluntary.

Recognising that the use of compulsory ADR in family mediation may need further consideration, a National Alternative Dispute Resolution Advisory Council will present a report to Attorney General Robert McClelland in September 2009 about the barriers and incentives of compulsory ADR as an alternative to civil proceedings.

The Government needs to be careful. Compulsory mediation is a contradiction in terms. As was the case with the fictitious Rose couple of Hollywood, certain cases can only be adequately resolved by judicial decision-making.