When families face relationship breakdowns, disputes over children, or disagreements about property division, the traditional approach of going to court can be costly, time-consuming, and emotionally draining. Mediation offers an alternative path to resolution that can be less adversarial and more constructive. In New Zealand, mediation plays a significant role in family dispute resolution, particularly through the Family Dispute Resolution (FDR) service.
What is Family Mediation?
Family mediation is a process where a neutral third party (the mediator) helps separating or divorcing couples resolve disputes without going to court. The mediator doesn't make decisions for the parties but facilitates discussion and negotiation to help them reach their own agreements.
In New Zealand, family mediation is formally known as Family Dispute Resolution (FDR) when it relates to parenting arrangements. FDR is a structured mediation process specifically designed to help parents resolve disagreements about the care of their children.
Family Dispute Resolution (FDR) in New Zealand
FDR was introduced as part of the family justice reforms in 2014. It is now a mandatory step before most parenting disputes can be taken to the Family Court, with some exceptions for urgent or safety-related matters.
The FDR Process
The FDR process typically involves the following steps:
- Assessment: Each party meets separately with the mediator or an intake specialist to determine if mediation is appropriate and to prepare for the joint session.
- Joint Mediation Session(s): The parties meet together with the mediator to discuss issues and work toward agreements. This may take one or several sessions.
- Agreement: If the parties reach an agreement, it is documented in a parenting agreement.
- Follow-up: Some mediators offer follow-up sessions to review how the agreement is working and make any necessary adjustments.
If mediation is unsuccessful, the mediator issues an FDR certificate, which allows the parties to apply to the Family Court.
Cost of FDR
FDR services in New Zealand are partially government-funded. Parties who meet certain criteria may be eligible for fully funded (free) FDR services. Those who don't qualify for funding typically pay around $448.50 per party for standard FDR services.
Benefits of Family Mediation
Mediation offers numerous advantages over court proceedings for resolving family disputes:
1. More Control Over Outcomes
In mediation, the parties make their own decisions rather than having a judge impose solutions. This allows for more creative and tailored arrangements that better meet the family's unique needs.
2. Less Adversarial
Court proceedings often pit parties against each other, increasing conflict and damaging relationships. Mediation focuses on cooperation and finding mutually acceptable solutions, which is particularly important when ongoing co-parenting is necessary.
3. More Efficient and Cost-Effective
Mediation is typically faster and less expensive than going to court. While court proceedings can take months or even years, mediation can often be completed in a few sessions over several weeks.
4. Confidential
Unlike court proceedings, which are generally a matter of public record, mediation is private and confidential. This allows parties to speak openly and explore options without fear of public disclosure.
5. Higher Compliance Rates
Research suggests that agreements reached through mediation have higher compliance rates than court-imposed orders. This is likely because the parties have actively participated in creating the agreement and feel ownership of the outcome.
6. Better for Children
Mediation can reduce the conflict children are exposed to during separation or divorce. It also allows parents to focus on their children's needs and develop parenting arrangements that prioritize their wellbeing.
Types of Family Disputes Suitable for Mediation
Mediation can be used to resolve various types of family disputes:
Parenting Arrangements
Mediation is particularly well-suited for resolving disputes about:
- Day-to-day care arrangements (who the children live with)
- Contact schedules (how children spend time with each parent)
- Decision-making about education, health care, and other important matters
- Holiday and special occasion arrangements
- Communication between parents and with children
Property Division
While FDR specifically focuses on parenting matters, private mediation can also help resolve property and financial disputes, including:
- Division of the family home and other real estate
- Distribution of financial assets and debts
- Division of personal property
- Spousal maintenance
Other Family Disputes
Mediation can also address other family conflicts, such as:
- Disputes between adult siblings
- Intergenerational conflicts
- Disagreements about care for elderly family members
- Conflicts in blended families
When Mediation May Not Be Appropriate
While mediation is beneficial in many cases, it may not be suitable in all situations:
Family Violence
If there is a history of family violence or power imbalances that cannot be managed safely within the mediation process, court proceedings may be more appropriate. However, in some cases, shuttle mediation (where parties are in separate rooms) or other safety measures can allow mediation to proceed.
Urgent Matters
When immediate court orders are needed (e.g., to prevent a child from being removed from the country), applying directly to the court may be necessary.
Inability to Negotiate
If one or both parties are unable or unwilling to negotiate in good faith, mediation is unlikely to be successful.
The Mediator's Role
Family mediators in New Zealand, particularly FDR providers, are trained professionals who:
- Facilitate communication between the parties
- Help identify issues and interests
- Assist in generating options
- Guide the negotiation process
- Reality-test potential solutions
- Document agreements reached
Mediators are neutral and do not take sides or make decisions for the parties. They are not judges, counselors, or lawyers, although some may have backgrounds in these professions.
The Role of Lawyers in Mediation
While lawyers typically don't attend FDR sessions in New Zealand, they can play important supporting roles in the mediation process:
Before Mediation
- Advising clients on their legal rights and obligations
- Helping clients understand the mediation process
- Assisting with preparation for mediation
Between Sessions
- Reviewing proposals and providing legal advice
- Helping clients consider options
- Assisting with gathering necessary information
After Mediation
- Reviewing mediated agreements
- Drafting formal legal documents
- Helping implement agreements
- Assisting with court applications if mediation is unsuccessful
Making Mediated Agreements Legally Binding
Agreements reached through mediation are not automatically legally binding in New Zealand. To make them enforceable, parties can:
Parenting Agreements
- Apply to the Family Court for a consent order that reflects the agreement
- This turns the agreement into a court order that can be enforced if necessary
Property Agreements
- Have the agreement formalized as a relationship property agreement under the Property (Relationships) Act
- This requires each party to receive independent legal advice
Preparing for Family Mediation
To get the most out of family mediation, consider these preparation tips:
1. Clarify Your Goals
Think about what matters most to you and what you hope to achieve through mediation. Distinguish between your "needs" (must-haves) and "wants" (preferences).
2. Gather Relevant Information
For parenting matters, consider children's schedules, school information, and specific needs. For property matters, collect financial documents, property valuations, and other relevant information.
3. Consider Options
Think creatively about possible solutions before mediation begins. Consider different arrangements that might work for your situation.
4. Seek Legal Advice
Consult with a lawyer before mediation to understand your legal rights and obligations. This helps you make informed decisions during the process.
5. Prepare Emotionally
Mediation can be emotionally challenging. Consider seeking support from a counselor or therapist to help manage emotions during the process.
Conclusion
Mediation plays a vital role in resolving family disputes in New Zealand, offering a more collaborative, efficient, and child-focused alternative to court proceedings. Through the FDR process and private mediation services, families have the opportunity to create their own solutions to parenting and property disputes.
While not appropriate in all cases, mediation can help preserve relationships, reduce conflict, and lead to more sustainable agreements. By understanding the mediation process and preparing effectively, separating couples can navigate this challenging time with greater control over outcomes and less emotional and financial cost.
If you're facing a family dispute, consider exploring mediation as a first step before resorting to court proceedings. With the right mediator and proper preparation, mediation can help you find a path forward that works for your family's unique circumstances.