Primary Dispute Resolution Services in Australia - Part 3
To View Part 1 of Letter: Part 1
To View Part 2 of Letter: Part 2
How can (a) more people be diverted "from any involvement in the adversarial process" and (b) there be a reduction in the numbers of people "commencing proceedings in the Family Court"?
Structural change
- Change the Family Law Act to erect barriers to litigation e.g. reduce the basis for applications, increase filing fees, reduce the number of judges, increase costs, reduce quality, lengthen delays (or create incentives for using PDR and increase the profile of PDR).
Professional issues and work practices
- As long as there are delays, you must file to get in the queue. Reduce numbers by making the product faster (but then there is a risk that numbers may increase because the system is faster). Delays can be either beneficial or detrimental in that, for some people, the purging experience of having their day in court is very beneficial or in the case of crisis, people might be too vulnerable to handle the process at the early stages of a family breakdown.
There was some general discussion that:
- In relation to the question about diverting more people away from any involvement in the adversarial process, there are a number of factors driving litigation. More research is needed to clarify this, for example, the need for a clearer definition of 'commencing proceedings' is needed because it might mean filing, obtaining consent orders or a hearing before a judge.
- It is accepted that 5% of cases need to be judicially determined. However, we need to acknowledge that, of the remaining 95%, people settle for different reasons such as cost, fear, or compromise and presumedly many people may settle outside the system or simply give up.
There was some general agreement that in considering the question about steering people away from litigation it might be useful to consider the reasons why people file.
Why do people file?
- To get in the queue.
- Emergency application to be made in a crisis situation.
- All other strategies or processes, including negotiation, have been exhausted.
- It puts negotiation into a structured procedure.
- Strategically advantageous (to be the initiator rather that the reactor)
- To get an independent source of advice or intervention from a third party.
- Some lawyers prefer to work in an adversarial manner.
- Where difficult questions of law arise and are too complex for the parties involved.
- Strategically advantageous (intimidate the other party).
- Litigants in person file (don't know what else to do).
- Gives the applicant credibility with other stakeholders e.g. children.
- Litigation affects the negotiation procedure i.e. litigate with the left hand, negotiate with the right.
- To get information from the other party e.g. subpoenas, affidavits.
- Filing provides an ethical foundation for negotiation i.e. changes the game play.
- To avoid professional negligence claims.
- Filing is functional to negotiation by getting a response from a disorganised party.
- Strategically advantageous (to exhaust funds/legal aid funds of other party).
- Must file for consent orders.
- Must file within 12 months of separation for property or child matters.
- Creates clarity i.e. party must state what they want.
- Gets the moral high ground for applicant.
If these reasons for filing exist it might prove beneficial to contemplate whether they can be satisfied by some means other than filing? The answer to how more people can be diverted from litigation might lie in considering the reasons for filing. For example, to see a Registrar for an Order 24 conference is only possible after filing, so if the filing requirement was removed would the need to proceed to litigation be lessened?
What relationships should exist between different dispute resolution providers?
Environment/market
- Determine who is the client - not a homogenous group. Market research needed to identify potential clients not just existing clients.
Referral and interaction
- Relationships should have a client focus based on client needs, client empowerment and client choice. Clients should make up their own minds based on adequate information at different stages in the family breakdown cycle/process.
- Knowledge of the network of family law services is necessary for appropriate referral but also a need to offer diverse services and perspectives which challenge, stimulate and complement each other.
- Shared research to develop uniform terminology and methodology and possibly shared data collection, or at least, information dissemination.
- Avoid dominance by one provider e.g. at present there is a perception in community based services that the Family Court dominates the field. Models of partnership could be adopted.
- Each provider could enhance the legitimacy of the others in a strategic partnership which views the family law system as one field.
- Cooperation between providers to do more with less, to minimise professional burn-out and ease pressure to be multi-skilled.
- Accept the importance of the point of first contact. That person should be able to offer different menus for appropriate client choice.
Professional issues and work practices
- Mutually agreed ethics, especially for client confidentiality.
- Providers should agree on minimum standards of service provision, rules on level playing field, accountability, clarity in roles and functions. There should also be consistent scrutiny and evaluation procedures.
End of session general discussion
The facilitator pointed out that this discussion should be in light of public statements made by the Attorney-General that services will be moved from one sector to another. Comment was made that the Attorney-General has the authority and right to determine public policy in this area. There was also acknowledgment that some of these issues had already been canvassed in the submissions to the Department's discussion paper and so were in the process of being considered. Questions to be considered for this discussion included:
- What, if any, dispute resolution services should be moved?
- If so, on what time schedule?
- If so, with what funding for whom?
- If so, managed by whom?
- If so, into what location?
As discussed in the meeting overview there was some thought that extensive research is needed to answer these kinds of questions precisely. Even if research data points to the need for change, this should be achieved through pilot programs with minimum initial disruption to services. However, care is needed with pilots as they can be of excellent design but impossible to replicate in reality i.e. 'rolls royce' pilots.
The Departmental discussion paper identified three problems with services:
- not enough accessibility
- cost too high - contestability issue
- lack of cross referral across the family law system because of a lack of integration.
Some members felt that the Departmental paper included a number of untested assumptions such as:
- the fact that the Family Court Counselling and Mediation Service is attached to the court leads to the assumption that people are directed into litigation;
- that you can reduce the numbers of people requiring judicial determination given that the population accessing these services is approximately only 5%;
- that you can reduce the numbers of people filing applications; and
- that transparency of the Family Court budget is needed.
NEXT DECADE OF RESEARCH
The facilitator had framed the questions numbered below based on his knowledge of international and national research in the area of dispute resolution services. He suggested that these were key questions falling out of that research for the next decade about the provision of dispute resolution services.
These key questions are similar to those issues and questions raised by the Attorney-General in his letter of 20 March 1998 to the Family Services Council and the Family Law Council. Attendees at the preliminary joint meeting reframed the Attorney's issues and questions for the purpose of the joint meeting and these are listed at pages 5 and 7 of the Report.
Key Questions
1. Can a helpful taxonomy (catalogue) of Dispute Resolution services be developed?
For example types of;
- interviewing
- assisted negotiation
- lawyering
- therapy
- mediation
- decision-making
2. What do successful Dispute Resolution practitioners actually do? (beyond myths, models and propaganda)
3. How can diagnosis be improved - right clients to right service more often?
4. How can the effectiveness or "success" of different Dispute Resolution services be compared accurately?
5. How can Dispute Resolution services be marketed more effectively?
6. What are the cultures and behaviours of gatekeepers to Dispute Resolution services?
To View Part 1 of Letter: Part 1
To View Part 2 of Letter: Part 2