Let arbitrators help smooth path of delicate family disputes

Divorce, they say, can be as painful as death. For a long time, critics said much the same thing about the Family Court. The blustery winds of change of recent years have helped ease that perception. Reforms have changed the way many arrangements for children are now resolved.

But in the latest cool blast, a judge has called for better resources for the Family Court following a couple’s fight over “modest” property that lasted twice as long as their three-year marriage.

In his December judgment, Justice Paul Heath said the case’s “disastrous consequences” showed it was time to “reflect on whether it is practicable for that court to do everything that Parliament has entrusted to it with its present resources”.

The call has been echoed by a number of leading divorce lawyers, including one, Lady Deborah Chambers, QC, who also ended up spending considerable time in court settling her own financial affairs after her husband, Justice Sir Robert Chambers, died.

The discussion comes at a time when the Law Commission is reviewing New Zealand’s relationship property laws, which came into force 41 years ago and, critics say, reflect a culture significantly different from today’s.

Any changes would presumably dovetail with the current Government’s work in reforming what it described as “a piecemeal approach to family law reform [that] impacted on the efficiency of the court, as well as ensuring it is sustainable, cost-effective and responsive to the needs of those who use it and the taxpayers who pay for it”.

Whatever the ultimate outcome of the latest deliberations, the country’s mediators and arbitrators — and here we’re talking about credentialed and properly trained neutral parties who assist in conflict resolution — have an enormous role to play. All the more so, one might add, if they are brought into the process instead of any court action.

Mediation is used extensively in New Zealand following reforms three years ago that required most disputes concerning care and contact issues involving children to be mediated before access to the Family Court. Nothing was done at the time about property disputes that often go hand in hand with a split.

Mediation has the capacity to empower couples to reach their own agreements for their futures. People can choose their own mediator and discuss the issues that are relevant to them. And mediation is speedy. And cheaper. And confidential.

These processes work. According to one British agency involved in the area, 80 per cent of all cases that enter mediation (or arbitration) are resolved. In this country there are similar results.

With mediation one retains control of the outcome; with litigation, even the best cases are far from certain to succeed. All issues, even non-legal issues, can be discussed and can be part of the agreed outcome.

One of New Zealand’s most experienced family mediators, Nicola Hartfield, says the skill of a mediator is in their ability to get people who are stuck to move past what seems to keep them stuck. “Seemingly intractable disputes, even in the delicate arena of family, are able to be resolved.”

Many couples are not waiting for a governmental pointer, they are choosing a private decision-maker, an arbitrator, skilled in both the process and property law, to finally determine their property disputes, bypassing the delays and public gaze of the court.

Given its proven advantages, one of the most important questions that will need to be considered in New Zealand is whether these mediators and arbitrators should be getting more involved in family disputes, taking the pressure off overburdened courts and offering families options that might serve them better.

The Family Court that was set up to serve New Zealanders in one of life’s most delicate domestic situations might yet be better served if the latest review allows mediators and arbitrators to do what they do best.