great use by the Queensland Family Law profession in utilising mediation to assist parties to resolve disputes.
In mid-2011, AIFLAM set about to explore how the profession could assist the Family Court of Western Australia to better deal with its current crisis.
A focus meeting was arranged in Perth with senior family lawyers including the President of the Family Law Practitioners Association (WA) Rod Hooper.
It was also evident that the Federal Magistrates Court and Family Court of Australia in other Registries were experiencing delays and resourcing issues, together with concerns as to what might happen to the Court’s fi nances in the May 2012 Budget.
Meetings were subsequently arranged with senior members of the profession and the judiciary in Adelaide, Melbourne, Hobart, Wollongong and Canberra, to explore how the Court could be supported by the referral of conciliation conferences to private mediators.
The response of the working groups in each of these cities to the initiative was strong, and enabled constructive discussions to be held with the judiciary on how the rollout of this scheme may be best implemented in each Registry, having regard to local practice and procedure.
With the assistance of Associate Professor Jill Howieson3
from the
University of Western Australia Law School, a pilot training program was specifi cally tailored to meet the crisis and to provide participants with the understanding and skills to conduct a suitable Mediation-style Conference. It also aimed to incorporate the further requirements for a National Mediation training course within nine months.
There has been strong support from the family law profession to the training and the rollout of the program. Initially in Perth, to provide suffi cient numbers of lawyers to be able to chair the outsourced Mediation-style Conferences within a reasonable timeframe, a two-day course was designed. This course is the fi rst
two days of the fi ve-day course that practitioners would ordinarily be required to complete as part of the NMAS Standards for national accreditation as a mediator. It also provided an opportunity for practitioners who were nationally accredited to “reskill”.
So far in Perth, 51 practitioners have completed the 2-day course plus 30 practitioners in each of Adelaide, Hobart and Bowral. In addition, Part 2 of the training comprising a three day course and a one day assessment has now been conducted in Perth and the fi rst batch of nationally accredited mediators under the new arrangement has occurred. Similar training will be conducted in the Eastern States later in 2012.
Courses have also been run by AIFLAM for solicitors to:
• help with their understanding of mediation and Mediation-style Conferences;
• assist in preparing clients for a negotiated settlement in a Mediation-style Conference environment;
• introduce new concepts and processes for dealing with practitioners and the Mediator or Chair of the conferences; and
• to assist in approaching the Mediation-style Conference from a diff erent perspective.
The particular aspect that enables this process to be well suited for lawyers is the opportunity for the Chair (should the parties request it) to express an opinion on a likely outcome or range of outcomes, and, in the event that the matter is not settled, to defi ne the issues as much as possible, identify what can be agreed and any other matters relevant to progress it to a hearing.
The saying “Litigation should be the avenue of last resort” rings as true today as when the Courts fi rst coined it. Facilitative processes such as the Mediation-style Conference provide parties with a proper method and process to resolve matters quickly or at least narrow the scope of the dispute. They also aff ord the Courts and the parties the opportunity to deal with disputes promptly.
The push by government at all levels to require parties to explore non-litigious options for resolving disputes also requires that family lawyers ensure that they understand how and why facilitative ADR processes, such as the Mediation-style Conference, work. It also requires that family lawyers incorporate these processes into their work as part of the range of dispute resolution tools available to them to assist their clients. It is clear that family lawyers need to be actively involved in these facilitative processes because not only do they bring considerable experience, knowledge, application of the law, and an understanding of outcomes to these processes but they also provide the all-important support to the parties, who in experiencing the security of having their lawyers present will be more likely to mentalize and in turn, more likely to make sensible and sustainable decisions regarding their future.
The Mediation-style Conference Pilot has seen 140 senior family lawyers re-engage with mediation at a deeper and more sophisticated level. It has also seen lawyers, the judiciary and academics cooperate to create a program that works not only pragmatically but also multi-dimensionally to address the theoretical, practical and research concerns that face the ADR movement in the family law environment in the current millennium.
For further information visit
www.aifl
am.org.au
Notes:
1. AIFLAM is managed by a Board of Directors consisting of representatives from each State of Australia, a representative for each of the Attorney-General, the Chief Justice of the Family Court of Australia and the Chief Federal Magistrate. Two members of the Executive of the Family Law Section of the Law Council of Australia are also Directors.
2. In the family law jurisdiction, there has been a court-based dispute resolution service and an extensive community-based mediation sector operating for over a quarter of a century. J Howieson,
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