14. Mediation

Updates and background for this project (Digest)

• What is mediation?
• Why mediation?
• Incidence of court annexed mediation
• Issues for consideration
• Mandatory mediation
• Specialist mediators
• Suitability for mediation

14.1 Disputes under the Property (Relationships) Act 1984 (NSW) (“the PRA”) usually arise from an intimate relationship, and are often charged with emotion. As such, they may be more effectively dealt with informally, by means of alternative dispute resolution, rather than through litigation. Unlike the Family Court, which is specialised in the area of relationship disputes and has an in-built and well-developed alternative dispute resolution system, the State courts, particularly the District Court and Local Court, have fewer resources and less specialist experience with family dispute resolution. This Chapter considers how mediation can be used more effectively, particularly within the court system, to effect improvements in dispute resolution.

WHAT IS MEDIATION?

14.2 Mediation is a form of Alternative Dispute Resolution (“ADR”) that “involves the intervention of a trained, neutral third party (or third parties in the case of co-mediation) who will assist the parties to reach their own solutions”.¹ The Australian Standard defines mediation by reference to the National Alternative Dispute Resolution Advisory Council’s (“NADRAC”) definition as follows:

A process in which the parties to a dispute, with the assistance of a neutral third party (the mediator) identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.²

A structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.³

14.5 Very little is known about what actually happens during the mediation process. This is because one of the main features of mediation is its confidentiality. Although there is a need for more empirical research on the value of mediation,⁶ the increasing use and support of mediation as an alternative to litigation in Australia is some evidence of its value and worth.⁷

WHY MEDIATION?

14.6 The increasing use of mediation may be attributed to many reasons. Most importantly, it occurs in an informal and less complex environment than the courtroom. While it is used in various areas of practice, it is particularly suitable for resolving relationship disputes. The parties feel they have reached an agreement themselves and are more satisfied as the process is often less adversarial and acrimonious. It also maintains privacy, which may be particularly appealing to lesbians and gay men who may not wish to reveal their relationship publicly because of fear of homophobia.⁸ It may also provide a much cheaper and more effective solution.

14.7 While the above may not always be the case in that mediation may fail and therefore add to costs, or it may be acrimonious and yet effective, the success of mediation generally depends on the parties’ agreement, that is their decision to avoid litigation and mediate instead, and on the mediator’s neutrality. Astor and Chinkin refer to consensuality and neutrality as the sources from which mediation derives its “legitimacy”.⁹

14.8 Consensual mediation should result in agreement since both parties choose to mediate. However, the parties can choose consensuality and yet either or both parties could operate in a manner that defeats this aim. Much depends on the mediator and how well the mediator is able to steer the process of mediation, while still staying neutral and not controlling the outcome. Thus, the role of the mediator is crucial to a successful mediation.

INCIDENCE OF COURT ANNEXED MEDIATION

14.9 Most disputes are resolved before court proceedings are commenced. Once litigation commences, a large number of disputes are still resolved by the use of ADR processes, including mediation, before the issues are determined.

14.10 In considering why court annexed mediation has been adopted consistently by courts and tribunals in Australia, Astor and Chinkin list the potential objectives of court connected ADR as follows:

• Reduce delay, clear lists, reduce backlog of court/tribunal;
• Assist in management of cases (which implies a question about the objectives of case management);
• Be appropriate to the needs of the case/parties;
• Be responsive to personal as well as business needs;
• Produce fair, equitable outcomes in all circumstances;
• Achieve party satisfaction;
• Produce enduring agreements;
• Preserve ongoing relationships between disputants;
• Protect the interests of vulnerable third parties;
• Preserve, and if possible, increase party respect for and confidence in the justice system;
• Encourage the parties to use alternative methods in the future;
• Encourage parties to use ADR earlier, including pre-filing;
• Achieve moral education/transformation;
• Educate/encourage/respond to the needs of the legal profession;
• Change the legal culture.¹⁰

14.12 The following is a review of the mediation services available in the courts in NSW.

The Supreme Court

14.13 The Supreme Court has, for the past 15 years, referred appropriate matters to alternative dispute resolution processes. The Arbitration (Civil Actions) Act 1983 (NSW), (now repealed by the CPA), led to the resolution of significant numbers of common law Supreme and District Court actions in New South Wales over the past decade.¹¹

14.14 In 2003, the NADRAC reported the following figures relating to the Supreme Court:¹²

• NSW SC civil arbitration – 2001/2002, 32 cases referred, 15 of the 32 resolved at arbitration;
• NSW SC Equity Division – 1999/2000, 131 cases referred for mediation, 91 of 131 settled at mediation;
• NSW SC Equity Division (Probate Mediations) – 2001-2 75 cases referred for mediation, 65% settled at mediation; and
• NSW SC Equity Division (Non-Probate Mediations) – 2001-2 165 cases referred for mediation, 59% settled at mediation.

• Eight Equity matters (probate) were referred to mediation and all were recorded as court-annexed mediations conducted by a registrar of the court who is a qualified mediator;
• 371 Equity matters (non-probate) were referred to mediation, 229 of these matters were recorded as court-annexed mediations and conducted by a registrar of the court who is a qualified mediator;
• There were no recorded referrals to arbitration during this period.

14.17 However, the CPA does not prevent parties from arranging for outside mediation or for mediation under the provisions of the Community Justice Centres Act 1983 (NSW).¹⁷

14.18 In recent years, Chief Justice Spigelman has observed that matters have been mediated in the Equity, Probate and Common Law Divisions and although no formal evaluation has as yet occurred, the preliminary indications are “very positive”.¹⁸ In its submission to the Commission, the Equity Division of the Supreme Court confirmed the Registrars’ success “in obtaining settlement of PRA disputes through mediation, without any cost to the parties”. It further submitted that the District Court could, if it had the resources, achieve comparable rates of settlement through mediation.¹⁹

14.19 If, after mediation has been ordered by the Court, the parties to the dispute cannot agree on a mediator, the Supreme Court may refer the parties to a court appointed mediator. Under the Joint Protocol for the nomination and appointment of mediators, the Court’s Alternative Dispute Resolution Committee keeps a list of professional associations that accredit mediators and provide mediation services suitable for Supreme Court proceedings. Each of the nominating entities establishes a panel of suitable persons to whom the Court ordered mediations may be referred.²⁰ The CPA provides that mediation is to be undertaken by a mediator agreed by the parties or appointed by the court, who may (but need not be) a listed mediator.²¹

14.20 A recent initiative is the Court of Appeal Mediation Pilot Scheme, which ran from November 2005 until June 2006. The Attorney General’s Department supported this scheme by subsidising the cost of each mediation up to a maximum of $2,500, where parties opt to use a private mediator, in an attempt to encourage parties to undertake mediation. (Outside the scheme, parties either choose to use a Registrar at no cost or they pay for private mediators themselves.)

14.21 Under this scheme, the Registrar of the Court of Appeal will, at Directions Hearings, choose cases which he regards as suitable and offer the parties the opportunity to participate in the Mediation Pilot Scheme. The cases identified as suitable for this scheme include those involving family provision and PRA matters. However, as at 29 May 2006, although there have been 12 matters referred for mediation, of which 6 matters have been concluded with 5 successful mediations, none of them were matters under the PRA.²²

The District Court

14.22 Like the Supreme Court, the District Court also has the power to refer parties to mediation in appropriate circumstances. Since the commencement of the CPA, all such matters are dealt with in the same manner as in the Supreme Court. Previously these matters were dealt with in the District Court Act 1973 (NSW). While the District court is empowered to compile a list of mediators,²³ such a list has not been compiled to date.

14.23 Most mediations are outsourced to private providers. It is the practice of the District Court to refer long civil matters to mediation and the parties are required to organise and pay for the mediation. It is understood that mediation is rarely ordered for PRA matters as they are considered “short matters”.²⁴ However, on 15 August 2005, the District Court Sydney initiated a mediation scheme whereby mediations are now conducted by Assistant Registrars. The List Judge and Judicial Registrar refer appropriate matters for mediation by an Assistant Registrar. The types of matters that are referred to mediation are matters where the parties do not have funds to pay for mediation and short mediations. As at December 2005, 16 cases were listed for mediation before an Assistant Registrar. Two of these matters were settled at mediation, two were vacated and the remainder were not settled.²⁵ The District Court does not keep statistics on the party initiated mediation or the outcome of mediation.

Local Courts

14.24 In the past, PRA proceedings commenced in Local Courts in accordance with the Property Relationships Regulation could not be referred to arbitration, mediation or neutral evaluation as set out in the Local Courts (Civil Claims) Act 1970 (NSW).²⁶ In practice, however, the Magistrate at St James Centre Local Court, using the power to give directions with respect to practice and procedure,²⁷ sometimes refers matters to the Registrar to conduct a conciliation conference not unlike an Order 24 conference.²⁸ Generally, most PRA matters in the Local Court are referred to Community Justice Centres (“CJCs”) for mediation. Local Courts and CJCs are likely to review the effectiveness of the Mediation Scheme during 2006.

14.25 Since the introduction of the CPA, the Local Courts now have the same powers as the Supreme and District courts in relation to mediation. As such, the Local Courts are now empowered to refer parties to mediation with or without their consent.

Mediation in the Family Court

14.26 Mediation in the Family Court has been, and continues to go through a process of refinement to meet the needs of its clients. In addition to mediation, the Family Court offers a range of other services, including conciliation, counselling and information sessions. The scheme adopted in the Family Court has been described as “the most comprehensive statutory scheme” containing “the most detailed mediation legislation in Australia to date”.²⁹ The dispute resolution process devloped in the Family Court has been a significant distinguishing feature of the court. Being a specialist jurisdiction which deals exclusively with family law matters, the Family Court has shaped itself to the needs of its clients and the characteristics of their cases, primarily as a “helping” court. Voluntary and court ordered counselling and conciliation conferences have been provided since 1975 and voluntary mediation services since 1992, with compulsory mediation in cases of disputed parenting arrangements to be introduced later in 2006.³⁰

14.27 The Family Court and the Commonwealth Attorney General’s Department have, from time to time, examined the efficiency of the Family Court’s mediation services. In 1999/2000, for instance, the Family Court reported that about 80% of the applications for final orders filed were resolved by mediation. However, this could be somewhat misleading since every pre-trial process is referred to as mediation.

14.28 Until the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), the FLA defined three categories of family and child mediators:

• a person employed or engaged by the Family Court or a Family Court of a State to provide family and child mediation services; or
• a person authorised by an approved mediation organisation to offer family and child mediation on behalf of the organisation; or
• a person, other than a person mentioned in paragraph (a) or (b), who offers family and child mediation.³¹

• have suitable qualifications, training and experience ( a person may provide mediation services as a community mediator or a private mediator only if the person has an appropriate degree or other equivalent qualification, has completed at least 5 days training in mediation and has engaged in at least 10 hours supervised mediation in the 12 months immediately following the training); ³³
• fulfil continuing training requirements on an annual basis;³⁴
• conduct an assessment of the parties, before providing mediation, to determine if mediation is appropriate;³⁵
• provide written information to the parties at least one day before the mediation;³⁶
• ensure that the mediation is suited to the needs of the parties;³⁷
• avoid providing mediation where there the mediator has a conflict of interests;³⁸
• not use any information acquired from a mediation for personal gain.³⁹

14.30 With the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), the Commonwealth has implemented significant changes to practice and procedure with respect to parenting disputes, dispute resolution and to the case management process in the Family Court.

14.31 In order to simplify the Act, the current Parts 2 and 3 of the FLA have been repealed and replaced by a new structure that groups the provisions into four new parts, by topic. The new Part 2 deals with non-court based services (including accreditation, family counselling, family dispute resolution and arbitration) and Part 3 deals with the court based services (also known as family consultants). The new Part 3A deals with obligations to inform people about non-court based services and the court’s procedures and the new Part 3B sets out the court’s powers in relation to court and non-court based family services.

14.32 Some of the notable changes in the context of dispute resolution include:

• The establishment of Family Relationship Centres around the country as the first point of contact for families requiring assistance, with “family counsellors” and “family dispute resolution practitioners” to conduct counselling and mediation.
• The adoption of a framework for the accreditation of family counsellors, family dispute resolution practitioners and workers in other Australian Government funded family services. The competency based accreditation standards, which will be a nationally agreed system of training and assessment in the areas of family counselling and family dispute resolution, are currently being developed by the Community Services and Health Industry Skills Council.
• The introduction of compulsory participation in family dispute resolution by parents prior to seeking court resolution subject to exceptions including family violence.
• Changes to the applicable definitions. In particular, the term ‘primary dispute resolution’ has been removed because it was considered confusing and did not adequately define the process⁴⁰ and “makes it difficult to differentiate specific types of intervention”.⁴¹ It has been replaced with the term “dispute resolution” which is defined to mean “procedures and services otherwise than by way of the exercise of the judicial power of the Commonwealth” and dispute resolution includes “counselling, mediation, arbitration, neutral evaluation, case appraisal and conciliation”.⁴²
• The introduction of a “family consultant”’ to replace the current “welfare officers” who will be assigned to each case in the court involving children, and will manage the case, providing a continuing service, as it moves through the court process.

These initiatives represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed away from litigation and towards co-operative parenting.

14.35 Currently, only voluntary, that is non-profit organisations, are eligible for approval by the Minister as an approved counselling or mediation organisation. The new amending legislation will allow any organisation (whether operating on a non-profit basis or not) to be approved and receive funding as a counselling or mediation organisation. According to the explanatory memorandum, the Government’s intention is that a wide range of organisations will be able to apply for approval and funding as a counselling or mediation organisation. It is expected that 15 Family Relationship Centres will commence operation in mid 2006 and that through these centres “the Australian Government is establishing a new platform to manage the interactions between the community and the family law system by establishing a new system that becomes the gateway into the system”.⁴³

14.36 To ensure that the professionals delivering counselling and mediation services are suitably qualified and capable of providing such services, they need to comply with the competency based accreditation rules currently being developed by the Community Services and Health Industry Skills Council Ltd (CSHISC). These rules will form the minimum requirements for all family counsellors and dispute resolution practitioners and will largely replace the current situation where counsellors and mediators can be authorised by approved organisations.⁴⁴ Existing approved services will not be affected by the changes to the approval process as transitional arrangements are provided in the legislation.⁴⁵

14.37 The Family Law Regulations will continue to prescribe requirements to be complied with by family dispute resolution practitioners in relation to the family dispute resolution services they provide.⁴⁶ In addition, the amending legislation has provided examples of the types of matters that should be dealt with in the Accreditation rules (prescribed in the regulations).⁴⁷ Many of these examples are already dealt with in the current Regulations. However, the following additional suggestions provide an even greater emphasis and more detail on the implementation and scrutiny of the accreditation process:

• who is responsible for monitoring compliance with ongoing requirements in the Rules;
• the consequences of accredited persons failing to comply with the provisions of this Act and the Rules;
• the obligations of accredited persons in relation to the monitoring of their compliance;
• the process of handling complaints involving accredited persons;
• who may deliver recognised training to accredited persons;
• dealing with individuals or other persons who make false or misleading representations about a person’s status as an accredited person.

14.39 While the family counsellors and family dispute resolution practitioners will mainly provide services in the community, the newly created “family consultant” will be a court officer appointed by the Family Court or the Federal Magistrates Court to manage the case and provide a continuing service through the court process.⁴⁹ The main distinction between the family counsellors and family dispute resolution practitioners on the one hand, and the family consultants on the other, is that the former will provide confidential services. It is hoped that this will assist in addressing the confusion that currently exists among the public as to the roles performed by the two sectors.

14.40 One of the key operational provisions is that a court cannot hear an application for an order under Part 7 (to do with Children) unless the applicant has also filed, with the application, a certificate by a family dispute resolution practitioner.⁵⁰ The certificate will state whether mediation is appropriate in the circumstances, which is a requirement under regulation 62 of the Family Law Regulations 1984 (Cth). The introduction of the compulsory attendance at a dispute resolution process, prior to applying to the court for an order, is focussed on processes genuinely concerned with resolving disputes and not those concerned with personal/relationship healing which is what family counselling is directed at. The court may also order one or more parties to attend one or more appointments with a family consultant.⁵¹

ISSUES FOR CONSIDERATION

14.41 The place of mediation and its effectiveness in resolving PRA matters, is to a large extent dependent on the mediator’s skill and training and his or her capacity to work with the parties, assess the suitability of the matter for mediation and facilitate the mediation while remaining neutral. In this context, the following issues arise for further consideration:

• When should the power to refer to mandatory mediation be exercised in PRA matters?
• Should relationship issues be referred only to mediators who are specialised in family law or PRA matters?
• Are all relationship matters suitable for mediation?

14.42 Mediation has traditionally been seen as a voluntary process. Parties who participate voluntarily are said to be empowered by the process; they have a sense of ownership of the process and may be consequently more satisfied with the outcome which they worked towards themselves, rather than having it imposed on them.

14.43 Over time, and across many areas of law, mediation and other forms of alternative dispute resolution have become, or are in the process of becoming, mandatory. Two types of mandatory mediation have emerged: one, where a court, having regard to the general circumstances of the case or to a particular issue in the case, orders parties to attempt mediation of the dispute or of the particular issue; the other, where an applicable statute compels mediation (unless the particular dispute falls within an exception listed in the legislation).⁵² In the latter case, mediation is the first process required in the resolution of the dispute, rather than just a mode of dispute resolution that the court may require in an individual case. The CPA adopts the first, and milder, form of mandatory mediation by empowering courts to refer proceedings (or any part of them) to mediation without the consent of the parties to the proceedings. Most States in Australia have similar provisions.⁵³ The Family Court has the power to mandate family dispute resolution pursuant to recent amendments to the FLA.⁵⁴

14.44 Even in its milder form mandatory mediation is controversial. It has been suggested for instance, that mandatory mediation results in a denial of a right to trial.⁵⁵ While this may not be the case because parties can choose to go to trial if the mediation fails, it has been suggested that where parties have limited financial or emotional resources, they may not be able to pursue both avenues.⁵⁶ It has also been argued that mandatory mediation is a contradiction in terms because it interferes with the consensuality of the process and by removing the “willingness” element, it undermines the effectiveness of the settlement.⁵⁷ A counter argument is that what is mandated is attendance and not settlement. However, increasingly more than attendance is required by the court that mandates the mediation. Thus, the CPA requires that parties who are referred to mediation must participate in good faith.⁵⁸

14.45 While some regard the imposition of mandatory mediation as a retrograde step in the establishment of an ADR culture,⁵⁹ a review of a mandatory court-connected mediation program in Ontario recently found a high level of positive response from participants about their experience of mandatory mediation.⁶⁰ The study also found that civil cases that were part of the mandatory mediation program were settled earlier,⁶¹ saving litigants substantial amounts of money.⁶² Further, it must be recognised that, in disputes where parties have come to firmly entrenched positions, the parties sometimes welcome being forced into mediation.⁶³

The Commission’s views

14.46 The power to mandate cases under the PRA to mediation should be exercised with caution, taking into account that these cases involve parties who may be severely emotionally affected by relationship breakdown or by violence or abuse. Where such cases are mandated to mediation, courts have a responsibility at least to ensure that an appropriate intake process is conducted and that appropriately skilled and experienced mediators are used. The American Society of Professionals in Dispute Resolution sums it up as follows:

Compulsory programs should be carefully designed to reflect a variety of important concerns. These concerns include the monetary and emotional costs for the parties, as well as the interests of the parties in achieving results that suit their needs and that will last; the justice system’s ability to deliver results that do not harm the interests of those groups that have historically operated at a disadvantage in this society; the need to have courts that function efficiently and effectively; the importance of the public’s trust in the justice system; the interests of non-parties whose lives are affected and sometimes disrupted by litigation; the importance of the courts’ development of legal precedent; and the general interest in maximising party choice.⁶⁴

Parties sometimes need to be encouraged by the court to embark on an ADR. The need for such encouragement should diminish in time if the virtue of ADR in suitable cases is demonstrated even more convincingly than it has been thus far... [W]e reiterate that the court’s role is to encourage, not to compel. The form of encouragement may be robust.⁶⁵

14.48 In practice, the referral to mediation is usually to generalist mediation services not annexed to the court. The focus on “specialist” mediation services is minimal. A possible consequence of this is that many people, particularly those in same sex relationships, may doubt the capacity of the mediators to understand their claims and the dynamics of their relationship with the other party. People in same sex relationships may also fear homophobia not only in the formal justice system, but also among mediators.

14.49 In contrast, one of the main features of the Family Court is its “specialist” nature, both in terms of judicial expertise and the mediation services available. This is consistent with one of the principal tenets of the Family Court that litigation should be a last resort and that the court has a duty to assist parties to resolve their disputes themselves wherever possible. To this end, the court’s mediation services are specialised and are co-located alongside its adjudicative functions. According to the former Chief Justice of the Family Court, the court’s case management process is so closely integrated with its mediation facilities that matters do not simply proceed through mediation first, and if that fails, proceed to litigation. Rather, there is a frequent movement between the mediation and litigation pathways, at all stages of the process.⁶⁶ This enables the parties to use a range of services and methods to resolve their disputes and is clearly motivated to provide an efficient and effective court annexed mediation program. There is a clear emphasis on the need for all those involved in the judicial and mediation process to be well trained and experienced, as well as sensitive to the type of matters that are to be resolved.

14.50 The need to have well trained and accredited mediators has been further recognised in the recent amendments to the FLA. Dispute resolution practitioners, as they are now to be called, will be assessed against nationally agreed competency standards and qualifications that are currently being developed by the CSHISC.⁶⁷

The profile of mediators

14.51 While mediators are required to have basic qualifications and training, the most important requirements are sensitivity and a good understanding of general relationship issues. Mediators must recognise and respect the differences and similarities between all people, regardless of sexual orientation and relationship status, if parties are to have confidence in the process.

14.52 At the same time, mediators do not act in a vacuum. As one mediator has commented:

The way we approach our work depends to a great extent on our families of origin and our life experiences, as well as our mediation training. It means that in our professional lives as mediators, we are not neutral: our attitudes, values and beliefs go with us into the mediation room.⁶⁸

14.54 In this context, some commentators have argued that the only suitable mediator for disputes between gay men and lesbians is a gay or lesbian mediator. Others are of the view that this “may not be possible or necessary”.⁷⁰ It has been documented that gay males and lesbians preferred heterosexual male and female co-mediators, or two heterosexual females, while lesbians also felt comfortable with one heterosexual female and one lesbian. A number of the interviewees were said to be cautious about people from their own communities being mediators fearing that their private affairs might not remain confidential, given the relatively small size of the gay and lesbian community.⁷¹

14.55 The key to effective mediation then appears to be that the mediator, whether heterosexual, gay or lesbian, must have the capacity to be able to work with the parties in a way that does not have a prejudicial effect on the parties by reason of their sexuality or particular circumstance. One writer suggested that this requires a mediator to take on a dual, almost contradictory role, first forgetting that the parties are gay and secondly not forgetting that the parties are gay. In other words, while same sex partners have individual needs to be taken into account, as a client group they may have particular needs that require special consideration.⁷²

14.56 In developing the new competency standards for counsellors and dispute resolution practitioners in the family law area, the CSHISC have, in their scoping report, noted that all practitioners in this area of work must, in addition to the current requirements, have an understanding and capacity to apply the following:

• knowledge about the changing social, economic and political climate as it impacts on the industry;
• the principles of social justice, human rights, anti-discrimination and confidentiality;
• practices to address cross-cultural issues;
• relevant OHS and employment equity principles and practices;
• principles of a non-discriminatory service;
• the impact of personal biases and experiences;
• individual difference of clients and colleagues, including those relating to cultural, social, economic, physical and health;
• consideration of the needs and rights of the individual, the family, the community and society;
• a client centred approach;
• the diversity of relevant models and practices;
• the holistic needs and rights of clients (as individuals and as a community).⁷³

14.58 It is expected that these competency standards will not only provide a national benchmark enabling consistency in the training requirements and portability but will also provide a set of specifications for measuring whether an individual is competent on an ongoing basis.⁷⁴

The Commission’s views

14.59 Clearly, mediator understanding of gay and lesbian relationships is important. Similarly, mediators must be trained to disregard commonly held but nevertheless wrong or uninformed assumptions or prejudices.

14.60 Thus, any mediator working in this area should understand the following issues as they affect and relate to both heterosexual and gay and lesbian relationships:

• the dynamics and effects of relationship breakdown;
• the nature and disposition of property and the division of work in and out of the home;
• the prevalence, dynamics and effects of abuse, including physical, emotional and sexual abuse and economic abuse on both adults and children;
• the potential impact of violence and abuse on property;
• the nature of gay and lesbian relationships;
• social attitudes and misconceptions about such relationships;
• the impact of homophobia on such relationships.

14.62 Several recent reports have supported developing a competency model which will provide industry benchmarks for ADR practitioners enabling consistency of training requirements as part of an overall approach to improving quality and efficiency.⁷⁵ These recommendations are now being implemented in the family law system.⁷⁶ The Commission suggests that organisations involved in training mediators should develop training programs dealing with PRA matters that at least comply with these standards.

SUITABILITY FOR MEDIATION

14.63 While specialist court annexed mediation can provide an effective alternative to litigation, it is important to ascertain if the dispute is suitable for mediation, because not all disputes can be mediated. Thus, there are three important matters for consideration in this regard:

• who should decide the suitability of the matter for mediation;
• when should that decision be made; and
• what matters should be considered when determining suitability for mediation.

14.64 The appropriateness of a particular dispute for mediation can be determined by:

• a judicial officer;
• an intake officer in a formal intake procedure; and/or
• by the mediator any time during the mediation.

14.66 Section 26 of the CPA provides that, if it considers the circumstances appropriate, a court may by order refer any proceedings before it, or part of any such proceedings, for mediation, either with or without the consent of the parties to the mediation.

14.67 Ordinarily, a judicial officer would refer a matter to mediation at the filing of proceedings before there has been a hearing. However, it may also occur during the course of the proceedings. Whether or not a matter is referred to mediation will depend largely on the circumstances of the case,⁷⁷ and the judicial officer’s evaluation of those circumstances. This, in turn will depend on the judicial officer’s experience in identifying what PRA matters are, or are not, suitable for mediation.⁷⁸ Dealing with PRA matters on a regular basis will no doubt be of benefit in this regard.⁷⁹ Apart from judicial officers, Registrars are also now actively involved in referring matters to mediation at directions hearings.

14.68 The mediator to whom the matter is referred may be a mediator agreed to by the parties, or a mediator appointed by the court, but need not be a ‘listed mediator’ meaning a mediator appointed in accordance with a practice note with respect to the nomination and appointment of persons for the purposes of the CPA.⁸⁰

14.69 It is assumed that listed mediators have the appropriate skills to conduct mediations. However, when the mediation is referred to an outside mediator, it is imperative that the judicial officer must be satisfied that the mediator is appropriately qualified to undertake such a mediation. This is not easy to do unless there are competency standards and qualifications that are easily identifiable. In this context, the development of nationally recognised competency standards and qualifications as part of the recent reforms to the family law system is a major initiative to support quality service delivery. Referring matters to mediators who have been accredited as having met the requisite nationally agreed standards will mean that proper intake assessments will be conducted and the mediator may still, in the course of the intake assessment or mediation, decide that the mediation should not proceed. This will ensure that the clients have the utmost protection and it will also increase their confidence in mediation as an effective form of dispute resolution.

14.70 NADRAC has identified “a variety of analytical and interpersonal skills used to conduct a sound assessment of a dispute for any particular ADR process or processes”. These skills can be demonstrated by:

• accurately and concisely analysing the issues presented to assess the most suitable process
• accurately and effectively referring parties to other services which may be more appropriate
• assessing parties’ capacity to negotiate
• understanding the emotions and expectations of parties
• determining the parties’ readiness to consider and commit to ADR processes, rather than continue the fight
• preparing and counselling parties in preparation for an ADR process
• assessing power differentials between parties, including the timely and effective exclusion of ADR where appropriate
• providing accurate, timely and relevant information about the ADR processes available, and other resources
• evaluation of factors such as apprehension of violence, security issues, age of the parties, issues affecting a party from a non-English speaking background, the need to seek advice, the legal or factual complexity of the matter, the precedential value of a formal resolution of an issue and the need for public sanctioning of particular conduct
• reassessing when necessary during the process in the light of new information^.81

14.72 In our Report on CJCs, the Commission suggested that CJCs should investigate the desirability of diverting further resources into pre-mediation, including pre-mediation training, with a view to the overall improvement of their mediation service.⁸²

14.73 Under the Family Law Regulations 1984 (Cth), approved mediators must assess the suitability of the parties to mediate. They cannot mediate if they consider that mediation is inappropriate in the circumstances of the particular matter at hand. ⁸³

14.74 It is imperative that judicial officers, intake officers and mediators are aware of, and take factors such as violence and the emotional state of parties into consideration, when referring to or conducting the mediation. Whether factors that might impact on mediation are known at the outset when determining whether the matter is suitable for mediation or become apparent during the mediation process, it is important that intake officers and mediators are capable of identifying and dealing with the issues appropriately. A legislative requirement that such matters be considered before mediation commences is in the Commission’s view warranted, to achieve the just and fair outcome of any dispute.

Recommendation 58
The PRA should provide that, before referring a matter under the PRA to mediation, a judicial officer must be satisfied that the mediation provider will undertake an initial assessment of the suitability of the matter for mediation.

14.75 In determining whether mediation is appropriate in a family law matter, an intake officer must consider whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:

(a) a history of family violence between the parties;

(b) the likely safety of the parties;

(c) the equality of bargaining power among the parties (for example, whether a party is economically disadvantaged in comparison with another party);

(d) the risk that a child may suffer abuse;

(e) the emotional, psychological and physical health of the parties;

(f) any other matter that the mediator considers relevant to the proposed mediation.⁸⁴

14.77 The Commission’s CJC Report recommended that the CJCs Act should include a list of the following factors that must be taken into account when considering whether a particular dispute is suitable for mediation:

(a) the safety of all parties to the mediation;

(b) any ADVOs or APVOs that may have been granted or that are pending;

(c) the degree of equality (or otherwise) in the bargaining power of the parties;

(d) the occurrence of violence and/or the risk of future violence between the parties or between one of the parties and a third party (including children of the relationship);

(e) the mental, physical and psychological state of the parties;

(f) the relationship between the parties;

(g) whether one of the parties may be using the mediation tactically to delay or gain some other improper advantage;

(h) the extent to which the issues in dispute are related to any violence between the parties;

(i) whether the party who has committed or threatened violence is a child; and

(j) any other matter relevant to the proposed mediation and the parties.⁸⁶

Matters involving violence

14.79 Chapter 9 of this Report considered the impact of any evidence of domestic violence on the property adjustment process and specifically, whether the incidence, or threat, of domestic violence should be an express legislative factor that the court must take into account when making an order under s 20 of the PRA. After careful consideration, the Commission favoured the Family Law Council’s recommendation to consider the effects of domestic violence on the contributions of the victim and those of the perpetrator. However, we did not feel justified in recommending these changes as they would apply only to one section of the State’s population, being those in same sex relationships and close personal relationships. We do consider it appropriate, to make recomendations that will improve the practical handling of cases involving domestic violence in State courts. This includes a consideration of how domestic and other violence should be considered, particularly in the context of mediation.

14.80 As discussed in Chapter 9, violence can be actual or threatened and it occurs in a high percentage of all intimate relationships, whether heterosexual or homosexual. There appears little statistical evidence on the incidence of violence in same sex relationships.⁸⁷ Violence can, and does, also occur in non-intimate but caring relationships.⁸⁸

14.81 There are divergent views in relation to the appropriateness of mediation in circumstances where violence has occurred. While violence itself cannot be mediated, as it is a criminal offence, it is the view of some mediators that disputes about property adjustment and care of children may be mediated even where there is violence, provided there are appropriate safeguards and the mediation is conducted by experienced mediators.

14.82 In this context, the NSW Women’s Legal Resources Centre (“WLRC”) was concerned about the increased willingness to mediate in relationships marked by domestic violence. The WLRC noted that it had observed this trend in relation to Legal Aid Family Conferencing, mediation sessions conducted both through Family Court Counselling and through private providers and was concerned that “engaging in mediation between parties whose relationship has involved domestic violence, can provide some implicit endorsement of the violence and fail to adequately appreciate the extent of its impact on the parties and any interaction they have”.

14.83 The WLRC also queried the durability and workability of many consent orders negotiated during or as part of a mediation process, especially when domestic violence is present.⁸⁹

14.84 There are many reasons why mediation may be inappropriate where there is domestic violence. Where there is violence, there is clearly a power imbalance. In such an environment it is very unlikely that a “consensual” agreement can be made between the parties and one party would be compromised.

14.85 Fear of repercussions following the mediation can also vitiate the voluntary nature of the agreement. The mediation process itself can become a vehicle for further abuse, control and intimidation of the victim. As Astor observes:

the imbalance of power created by violence is extreme and is too great for a neutral mediator to redress; the nature and history of the relationship between the parties makes consensual decision making impossible; mediation places an extreme burden on the target of violence; mediation can endanger the safety of women who are the target of violence and the children in their care; mediation is highly likely to result in unjust and exploitative agreements where there has been violence.⁹⁰

14.86 Many provisions of the FLA refer to aspects of family violence, and particularly to the court’s role in protecting individuals and particularly children from the effects of such violence.

14.87 Currently, s 60D of the FLA defines “family violence” to mean “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well being or safety”. Under the recent amending legislation, the definition of family violence has been moved to the general definition provision in section 4(1).⁹¹ It has also been amended to include an objective element of “reasonableness”: fear or apprehension of violence must be reasonable.

14.88 This change is not intended to suggest that violence is acceptable nor will it make it harder for people to disclose family violence. As the Explanatory Memorandum states: “Given the serious consideration that courts give to family violence in making parenting orders, these matters should be objectively tested”.⁹²

14.89 Family violence is a particularly relevant issue when determining whether mediation is appropriate in the circumstances of the case. The Family Law Regulations 1984 (Cth) provide that in determining this matter, the mediator must consider whether the ability of any party to negotiate freely is affected by issues such as a history of family violence, the fears for the safety of the parties or the risk that a child may suffer abuse.⁹³ Under the recent amendments to the FLA, a new section 60I provides for compulsory attendance at family dispute resolution in a range of circumstances, prior to lodging an application with the court. However, attendance at family dispute resolution is not required where the court is satisfied that there are reasonable grounds to believe that there has been or would be a risk of abuse of the child if there were to be a delay in applying for the order, or if there has been or would be a risk of family violence by one of the parties to the proceedings.⁹⁴

14.90 In recognition of the impact of family violence on all aspects of the court’s operations, the Family Court has adopted a Family Violence Strategy covering five key areas: information and communication, safety, training, resolving the dispute and making the decision.

14.91 In relation to training, the FCA has recognised the need for all court staff to be trained and has developed an internal family violence training plan to ensure that new and existing staff members are equipped to understand and deal with issues of family violence within the court context.⁹⁵

14.92 In relation to resolving disputes, the Family Court has recognised that while not all circumstances are appropriate for resolution by mediation, all clients of the court participate in conferences which provide assessments and decisions about the best possible way of dealing with the dispute. Thus the Family Court recognises the need to review conferencing and mediation policies to ensure that people participate in conferences in a safe manner and are able to make informed decisions regarding their circumstances.⁹⁶

Mental and physical condition of the parties

14.93 Another range of factors to be taken into account in determining if mediation is appropriate lies in the mental and physical condition of the parties. This range of factors includes:

• the emotional and psychological state of any of the parties;⁹⁷
• the physical health of any of the parties;⁹⁸
• a psychiatric or psychological disability in any of the parties;
• the parties’ age, maturity or intellectual capacity; and
• an alcohol or drug dependency in any of the parties.

Lack of good faith

14.95 Mediation may also be inappropriate in circumstances where one of the parties is not approaching the mediation in good faith. Examples include situations where it becomes clear that one of the parties is using the mediation for the purposes of delaying legal proceedings or to gain some other inappropriate advantage,⁹⁹ or where one of the parties has a history of breaking promises. Or it may simply be the case that there is no possibility of the parties reaching agreement on any issues, and that time is being wasted.

The Commission’s views

14.96 The Family Court has recognised the need regularly to review and refine its policies and practices. This has taken the form of legislative reform as well as the development and implementation of policies such as the Family Violence Strategy. While much research has been done on the power differentials resulting from violence in heterosexual relations, the same is possibly true of power differentials from violence in same sex de facto relationships and caring relationships. The development and implementation of a domestic violence strategy for the courts, similar to that of the Family Court, would in the Commission’s view, provide the courts with guidance and a protocol for dealing with practical problems that can arise in disputes between domestic partners where there is a history of violence.

14.97 The Commission is also of the view that the PRA should list the factors to be taken into account in determining the suitability of a matter under the PRA for mediation. In making this recommendation we re-iterate the arguments in our Report on Community Justice Centres for the legislative recognition of the danger involved in referring mediation matters involving violence.¹⁰⁰

Recommendation 59
The PRA should provide that the following factors must be taken into account in considering the suitability of any dispute under the Act for mediation:

(a) the safety of all parties to the mediation;

(b) any ADVOs or APVOs that may have been granted or that are pending;

(c) the degree of equality (or otherwise) in the bargaining power of the parties;

(d) the occurrence of violence and/or the risk of future violence between the parties or between one of the parties and a third party (including children of the relationship);

(e) the mental, physical and psychological state of the parties;

(f) the relationship between the parties;

(g) whether one of the parties may be using the mediation tactically to delay or gain some other improper advantage;

(h) the extent to which the issues in dispute are related to any violence between the parties;

(i) whether the party who has committed or threatened violence is a child;

and

(j) any other matter relevant to the proposed mediation and the parties.

1. T Sourdin, Alternative Dispute Resolution (Lawbook Co, Sydney, 2002) at 23.

2. The Australian Standard, Guide to the Prevention, Handling and Resolution of Disputes (AS 4608, 1999).

3. Civil Procedure Act 2005 (NSW) s 25.

4. L Street, “The language of alternative dispute resolution” (1992) 66 Australian Law Journal 194.

5. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths Australia, 2002) at 4.

6. Some of the reviews already done include Keys Young, for the Legal Aid and Family Services Branch, Research/Evaluation of Family Mediation Practice and the Issue of Violence (AGPS, 1996); L Moloney, T Fisher, A Love, S Fergusson, Managing Differences: Federally Funded Family Mediation in Sydney – Outcomes, Costs and Client Satisfaction (AGPS, 1996). See also H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths Australia, 2002) at 136-137.

7. H Astor, “Mediation of intra lesbian disputes” (1997) 20 Melbourne University Law Review 953.

8. S Bryant, “Mediation for lesbian and gay families” (1992) 9 Mediation Quarterly 391.

9. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths Australia, 2002) at 146.

10. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths Australia, 2002) at 262.

11. Australian Law Reform Commission, Alternative or Assisted Dispute Resolution (Adversarial Background Paper 2, 1996).

12. National Alternative Dispute Resolution Advisory Council, “ADR Statistics Published Statistics on Alternative Dispute Resolution in Australia” (2003).

13. Information provided by Ms Jeannie Highet, Manager, Caseload Analysis, Supreme Court of NSW, 1 June 2005.

14. Mandatory mediation was introduced by the Supreme Court Amendment (Referral of Proceedings) Act 2000 (NSW).

15. Civil Procedure Act 2005 (NSW) s 26.

16. Civil Procedure Act 2005 (NSW) s 27.

17. Civil Procedure Act 2005 (NSW) s 34.

18. J Spigelman, “Mediation and the court” (2001) 39(2) Law Society Journal 63.

19. Equity Division of the Supreme Court of NSW, Submission at para 72.

20. Supreme Court of New South Wales, Practice Note 125, 17 December 2003.

21. Civil Procedure Act 2005 (NSW) s 26(2), (3).

22. These figures were provided by the Registrar of the NSW Court of Appeal, 29 May 2006.

23. Civil Procedure Act 2005 (NSW) s 26(3).

24. The Listing Manager of the District Court informed the Commission that mediation is usually ordered for matters requiring more than 5 hearing days.

25. Information provided by the District Court of NSW, May 2006.

26. Although the Local Court is empowered to refer matters to arbitration, mediation and neutral evaluation, those provisions only apply to proceedings commenced under the Local Courts (Civil Claims) Act 1970 (NSW).

27. Property Relationships Regulation 2000 (NSW) cl 15.

28. A conference held under Order 24 of the Family Law Rules (Cth) is called a conciliation conference and is conducted by a legally trained Registrar. The Registrar holds the conference with the parties and their legal representatives to resolve disputes in property matters.

29. T Altobelli, “ADR legislation: some recent developments” (1996) 3(1)Commercial Dispuite Resolution Journal 1 at 11.

30. Family Amendment (Shared Parental Responsibility) Act 2006 (Cth).

31. Family Law Act 1975 (Cth) s 4.

32. Family Law Regulations 1984 (Cth) reg 59(1) under FLA s 19P. See also para 14.48 – 14.58 below.

33. Family Law Regulations 1984 (Cth) reg 60.

34. Family Law Regulations 1984 (Cth) reg 61.

35. Family Law Regulations 1984 (Cth) reg 62.

36. Family Law Regulations 1984 (Cth) reg 63.

37. Family Law Regulations 1984 (Cth) reg 64.

38. Family Law Regulations 1984 (Cth) reg 65.

39. Family Law Regulations 1984 (Cth) reg 65.

40. Revised Explanatory Memorandum to the Family Law Amendment (Shared Parenting Responsibility) Bill 2005 (Cth) at 17.

41. Revised Explanatory Memorandum to the Family Law Amendment (Shared Parenting Responsibility) Bill 2005 (Cth) at 82.

42. Family Law Amendment (Shared Parenting Responsibility) Act 2006 (Cth) Sch 4 item 95.

43. Community Services and Health Industry Skills Council Ltd, Family Counselling, Family Dispute Resolution and Children’s Contract Services Scoping Report, 2005 at para 1.3.1.

44. Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) at 77.

45. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 4 Pt 4.

46. FLA s 19P provides that regulations may prescribe the requirements to be complied with in relation to the mediation services they provide. This section has been replaced by a new s 10K pursuant to the restructuring of the FLA by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The regulations will be amended in due course to reflect the new terminology.

47. New s 10A inserted by Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 4 Pt 3 item 36.

48. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 4 Pt 2.

49. FLA s 11A inserted by Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 4 Pt 3.

50. FLA s 60I inserted by Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 1 Pt 1.

51. FLA s 11F inserted by Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 4 Pt 3.

52. For example, Retail Leases Act 1994 (NSW) s 63 provides that, except for interim orders, a court or tribunal must not deal with an application under that Act unless (a) the Retail Tenancy Unit certifies that mediation has failed or (b) the court or tribunal is satisfied that mediation is unlikely to resolve the dispute. On the other hand, the recent amendments to the Family Law Act empower the FCA to order family dispute resolution, unless the circumstances fall within the specified exceptions.

53. The Supreme Court Act 1991 (Qld) enables referral to be done with or without consent of the parties. In South Australia, the Supreme, District and Magistrates Courts permit mediation to be ordered without consent: Supreme Court Act 1935 (SA) s 65, District Court Act 1991 (SA) s 32, Magistrates Court Act 1991 (SA) s 27; and mandatory mediation is permitted in Tasmania: Supreme Court Rules 2000 (Tas) s 518. Similar provisions apply in Western Australia: Rules of the Supreme Court 1971(WA) o 29; the ACT: Court Procedure Rules 2006 (ACT) o 1179, 1180; and the Northern Territory: Supreme Court Rules (NT) o 48.13. See also, Supreme Court Rules (General Civil Procedure) Rules 2005 (Vic) o 50.

54. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

55. B Walker and A Bell, “Justice according to compulsory mediation: Supreme Court Amendment (Referral of Proceedings) Act 2000 (NSW)” (2000) Bar News 7.

56. Society of Professionals in Dispute Resolution (SPIDR) Mandated Participation and Settlement Co-ercion: Dispute Resolution as it relates to the Courts, 1991, SPIDR, United States at 7, quoted in H Astor and C Chinkin, Dispute Resolution in Australia at 273.

57. J David, “Designing a dispute resolution system” (1994) 1 Commercial Dispute Resolution Journal 26 at 32-33.

58. Civil Procedure Act 2005 (NSW) s 27.

59. D Spencer, “Mandatory mediation and neutral evaluation: a reality in NSW” (2000) 11 Australian Dispute Resolution Journal 237 at 251.

60. R G Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report -the first 23 months (2001) at 96-101.

61. R G Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report -the first 23 months (2001) Ch 3.

62. R G Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report -the first 23 months (2001) Ch 4.

63. In Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427, Justice Einstein made the point at para 30 that “There is a category of disputants who are reluctant starters, but who become willing participants. It is to that category that the new power is directed.”

64. Society of Professionals in Dispute Resolution (SPIDR) Mandated Participation and Settlement Co-ercion: Dispute Resolution as it relates to the Courts, 1991, SPIDR, United States at 2, quoted in H Astor and C Chinkin, Dispute Resolution in Australia at 275.

65. Halsey v Milton Keynes General NHS Trust (English Court of Appeal, B3/2003/1458, 11 May 2004, unreported) at para 11.

66. A Nicholson and M Harrison, “Family law and the Family Court of Australia: experiences of the previous 25 years” (2000) 24(3) Melbourne University Law Review 756.

67. The Community Services and Health Industry Skills Council is a nationally recognised industry skills training advisory body for community services and health, on behalf of the Commonwealth Attorney General’s Department.

68. L Fisher, “Working with gay and lesbian partners – process and practice issues” (2004) 15 Australasian Dispute Resolution Journal 273.

69. L Fisher, “Working with gay and lesbian partners – process and practice issues’ (2004) 15 Australasian Dispute Resolution Journal 273 at 276.

70. H Astor, “Mediation and Intra-Lesbian disputes” (1997) 20 Melbourne University Law Review 953 at 966.

71. L Fisher, “Working with gay and lesbian partners – process and practice issues’ (2004) 15 Australasian Dispute Resolution Journal 273 at 276-277.

72. S Wright, “Same sex counselling with couples and families” in G Bateman (ed), Relationships into the New Millennium (Relationships Australia Inc, Canberra, 1999) at 192. See also L Fisher, “Working with gay and lesbian partners – process and practice issues’ (2004) 15 Australasian Dispute Resolution Journal 273 at 276.

73. Community Services and Health Industry Skills Council, Family Counselling, Family Dispute Resolution and Children’s Contact Services Scoping Report, 2005 at 10-11.

74. Community Services and Health Industry Skills Council, Family Counselling, Family Dispute Resolution and Children’s Contact Services Scoping Report, 2005 at 13.

75. National Alternative Dispute Resolution Advisory Council, A Framework for ADR Standards, (Report to the Commonwealth Attorney General, 2001), rec 18, at 86; New South Wales Law Reform Commission, Community Justice Centres (Report 106, 2005) at para 7.6; Urbis Keys Young, Review of Family Relationships Program, (2004), at xiv; RPR Consulting, Family Relationships Service Providers Assessments and Approval Requirements. (Department of Community Services Issues Paper, 2005).

76. The Community Services and Health Industry Skills Council, on behalf of the Commonwealth Attorney General’s Department is currently developing competency standards for the family relationships workforce within the context of the recent reforms to the family law system under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

77. See discussion below at para 14.75 – 14.95.

78. See Recommendation 54.

79. See Chapter 13 at para 13.18 – 13.23.

80. Civil Procedure Act 2005 (NSW) s 26(3).

81. National Alternative Dispute Resolution Advisory Council, A Framework for ADR Standards (Report to the Commonwealth Attorney General, 2001) at 105.

82. New South Wales Law Reform Commission, Community Justice Centres (Report 106, 2005) at 92.

83. Family Law Regulations 1984 (Cth) reg 62.

84. Family Law Regulations 1984 (Cth) reg 62.

85. Family Law Rules 2004 (Cth) rule 1.05.

86. New South Wales Law Reform Commission, Community Justice Centres (Report 106, 2005) at 76.

87. See Chapter 9 at para 9.5.

88. See Chapter 9 at para 9.6.

89. Women’s Legal Resources Centre, Submission at 26.

90. H Astor, “Violence and family mediation” (1994) 8 Australian Journal of Family Law 3.

91. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 1 Pt 1 item 3.

92. Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) at 9.

93. Family Law Regulations 1984 (Cth) reg 62.

94. New s 60I(9)(b) of the FLA (as introduced by the Family Law Amendment(Shared Parental Responsibility Act 2006 (Cth) Sch 1 item 11).

95. Family Court of Australia, Family Violence Strategy 2004-2005 at 10.

96. Family Court of Australia, Family Violence Strategy 2004-2005 at 11.

97. Family Law Rules 1984 (Cth) o 25A r 5(d); Family Law Regulations 1984 (Cth) reg 62(2)(e).

98. Family Law Regulations 1984 (Cth) reg 62(2)(e).

99. Family Law Rules 1984 (Cth) o 25A r 5(e).

100. New South Wales Law Reform Commission, Community Justice Centres (Report 106, 2005) Ch 4.