​If you haven't yet had a chance to sit in on a Parenting Through Separation Programme (“PTS”) you should. A senior practitioner who recently did had this to say:

“I just wanted to let you know that I attended the first PTS session last night and thoroughly enjoyed seeing it in action. I was impressed by the authenticity of the facilitators (it was not just a reading out of MoJ information – far from it!) and they were able to quickly engage the participants who were willing and comfortable to involve themselves in discussions. 
I was impressed at the way the facilitators modeled positive language (eg not using ex wife, but my daughter's parent) and throughout the discussions with participants, kept bringing them back to the children’s needs and perspectives. It was a heartfelt reminder to me about just how “raw” people are after a separation, how motivated they are to do the best for their children and how they do need to receive information and education to move ahead as parents.”

PTS should be the starting point for any client discussions about parenting issues, unless safety or urgency considerations demand otherwise – and then only the pre/post application timing of enrollment should be in question. Repeal of s.8 of the Family Proceedings Act 1980 in the 2013 reforms, does not lessen our duty to promote conciliation of parenting disputes. S.7B  COCA does not say otherwise. The s.9 counseling requests that were a routine part of practice for most of my time in the Family Court are no longer an available resource but PTS is. I can say without hesitation that in Hawke's Bay it is both accessible and effective. In Napier and Hastings each month both 4 hour daytime and  2 x 2 hour evening sessions are offered. The feedback is consistently positive. I expect the same is true in other centers as well.

Birthright HB Child and Family Care is the current PTS Provider for Waipukurau through to Wairoa. I and some other local practitioners get to deliver 1 hour of the 4 hour programme, talking about parenting disputes, FDR, Family Court and COCA. For this article I prepared an  outline of what those sessions involve so you know what your clients are being told. Then I came across an email I sent to a colleague recently who was to deliver the programme. It seemed to me that the e-mail summed it up.

“I usually cover:-

Law that applies

I start with guardianship v care arrangements - 'cos that seems to be something people don't get - always try and frame it around the child's right to have all guardians involved in important decisions. Who are guardians and additional guardians? Try to mention testamentary guardianship as well.
I try to emphasise that there are no "standard" arrangements for care (people used to think it was kids with Mum and with Dad every second weekend and now that it's week about but neither of those beliefs is true.....).
Law says that kids have a bunch of rights. The job of parents and the Courts if parents can't, is to have an honest look at the parents' and kids' circumstances and try and figure out what arrangements are practical and respect those rights as much as possible. I try to emphasis that it is not about making the kids fit into some "template" arrangement.


FDR Process
3 channels proceedings about children can go down - ie. urgency/ safety or simple track- straight to Court - everything else has to start with FDR.
I explain that the parts of FDR that have to be done before the Court can be asked for help are PTS and Mediation. Also mention the 2 other parts of FDR - FLAS and "coaching".
I normally talk a bit about the mediation process - my spin on it is that Court is shaped like this > "your story gets squished down onto the least number of issues for the judge to decide", mediation is shaped like this < opportunity to sort out whatever needs to be, for parents to be able to get on with their job.

I often also talk about Court being a disempowering process – “you'll be told what part of your story is relevant and how to tell it and your power as parents is taken away because the judge decides what happens for your kids” - the aim of mediation is to empower parents to get to the place where they can sort it themselves. I sometimes also talk a bit about power in mediation ie. you have absolute power in the sense that there can be no outcome you don't agree with - but no power in the sense that you can't make the other parent do anything they choose not to - so its about asking and figuring out out how to make it easier for the other parent to agree.

Court Process
I note the expectation that they start the process themselves (with FLAS) and roughly outline it ie. application/affidavit – service/ response- coming before Judge to decide what the issues are and what information is needed. Judge might appoint a lawyer for the children and will decide when and if parents can have lawyers representing them. Talk a bit about the role of lawyer for child and the costs, where a child's views fit into the process. Cover the  possibility of social work or psychologist reports.
I often talk a bit about how it is important that they “own” the Court process ie. listen hard to  advice but make sure they understand what is going on, ask if they don't and instruct the lawyer - not the other way around.

Usually I get distracted by interesting/ challenging questions and forget (or run out of time) to cover a heap of the stuff but often there is more learning from a really good real life discussion than a talking heads session I reckon.

Have fun.”

Those of us engaged in providing professional advice have been aware of some fundamentals for years namely:

1. The economic backbone of our region is small to medium (often family) businesses;
2. The “baby boom” demographic means that a transfer of capital and business management is underway and will continue for coming decades;
3. There is huge scope for good advice and planning to add value for clients engaged in those transitions.

 
This article looks at the value add for clients and their advisors in using mediation within those planning processes. It involves only a slight shift in thinking to see the value of the mediation process as a  conflict prevention as well as conflict resolution tool. Purists might call it “facilitation” rather than “mediation”. The label matters little. The process works and the fundamentals are the same.
 
I don't think it is contentious to suggest that the following are very often features of the circumstances in which advice is sought:

1. There is no plan. Recent research results suggests that 41% of business proprietors intended to retire but had no articulated plan to do so ;
2. Few proprietors intend a “clean” exit , 7% in that research;
3. Successors to business/capital have different priorities, skills and priorities from their predecessors;
4. Business stakeholders and family members will each have a different relationship with and level of  comfort and familiarity advisors;
5. They (and affected third parties – spouses/partners) will each have different interests;
6. The quality of the advice given depends on the quality of the information provided and “...The statistical data clients give to their [advisors] is usually comprehensive and accurate, but hidden interests and suppressed emotional needs of clients are seldom fully disclosed in the presence of one another.” Gage, D. and Gromala, D., Mediation in Estate Planning: A Strategy for Everyone’s Benefit: Elder's Advisor, The Journal of Elder Law and Post-Retirement Planning - November 2002;
7. Advisors cannot ethically have confidential discussions with all stakeholders. The temptation to do so, while understandable, is mistaken.

 
What that creates is a risk that:

1. Plans will be based on assumptions or inaccurate information and will be flawed accordingly;
2. Necessary interests will not be met, leading to later conflict;
3. The process will be longer and more costly as existing conflict is worked through;
4. Conflicts of interest for advisors will not be identified and avoided;
5. Important relationships will be damaged;
6. The safe and orderly transitions that are intended, will be jeopardised.

 
While those risks are perhaps more obvious in a family succession or estate planning context, the same issues and dynamics arise in business planning.
 
Lawyers, accountants and financial planners are engaged, day to day, in advising clients on these planning processes. Facilitators/mediators are not about supplanting that advice or undermining thise valuable relationships. We well know however that there are situations where, because of existing discord (whether or not chrystallised into litigation) or because of fear of conflict, necessary planning is not undertaken or important consultation is avoided. I also know that later disputes (the least welcome kind of inheritance) are sometimes made almost inevitable because plans are made and implemented with important interests undisclosed and therefore ignored.
 
If those dynamics are at play or the stakes are high for whatever reason, mediation processes can be useful. Why?:

1. First and fundamentally, a mediator is able to confer confidentially with all parties and is in fact contracted to do so. The clarity with which that enables problems (existing or potential) and their root causes to be identified and addressed, is stunning;
2. The mediator's skills lie in working through parties' assumptions to help clarify and  communicate their key interests and in helping negotiate around where those interests intersect;
3. The cost of using a mediator to assist stakeholders negotiate an agreed plan is minimal compared to the cost (measured in any way) if it goes wrong;
4. The process supports the involvement of lawyers and/or other professionals to ensure individual parties are making informed decisions and gets the various professionals “on the same page” from the outset (again with major cost savings);
5. The outcomes, implemented with professional advice, are likely to be of higher quality because they have a solid information base and take into account all affected interests;
6. There is less risk of conflict of interest claims against the professionals involved;
7. Finally and most importantly, clients get the best and most robust outcome achievable.

 
When I was starting out in legal practice a very wise senior practitioner  gave me a piece of advice which has proved itself true on too many occasions to count,  “...never underestimate the power of habit”. My challenge is that next time you are appraching difficult decisions, don't approach it in the same way you always have because that is how you have always done it. Consider whether the quality of the outcome might be improved by a well mediated planning discussion involving everyone effected.
 
Not every business, succession or estate plan needs mediation BUT many would be far better for it. Any mediator I know would be happy to discuss the process with you and/or advisors, obligation free
 
There is little to lose and much to gain.

Process Models
For the purposes of this essay, mediation is the model used to typify a consensual dispute resolution process. Arbitration is the model used to typify an adjudicative process. Neither is an exclusive model.

First Principles
Whether entering onto an agreement to mediate or an arbitration agreement, a participant is contracting an independent third person to administer a process aimed at resolving a dispute.

In procuring a consensual dispute resolution process the participant agrees to cede to that third party, powers to determine at least some aspects of the process by which the resolution will be reached. Crucially, the participant retains control over the outcome. That is the essence of a consensual process. The participant cannot be bound to an outcome that he or she does not specifically agree to be bound to.

In procuring an adjudicative process, the participant, as well as ceding to the third party control over at least some aspects of the process by which the resolution will be reached, yields to the adjudicator control over the outcome. That is the essence of an adjudicative process. The participant can be bound to an outcome that he or she has not specifically agreed to and may indeed oppose.

These processes are fundamentally different. They are aimed at different ends. To optimise outcomes from mediation, for example, the process will maximise participants’ opportunity to uncover and explore subjective interests, consider a broad range of options tor consensus and resolve a dispute by agreement. That is the “point” of the process. By contrast, the “point” of an adjudicative process is to enhance the fair application of an objective evaluation.  Optimum process will enhance participants’ opportunity, within the agreed set of rules, to efficiently present their case to the adjudicator and thus have a fair and equal opportunity to influence the adjudicator’s application of objective criteria to “relevant” facts. 

Hybrids
For participants, there will often be competing interests. On one hand will be the desirability of retaining control over the outcome, which a consensual process will provide. On the other will be a preference for the certainty that an adjudicative process assures, that there will be an outcome.

Not surprisingly perhaps, those competing interests, which will be in the minds of many if not most disputants, have led to the desire to formulate hybrid models which aim to provide participants with the best of both processes i.e. to maximise the opportunity for consensual resolution while  also providing certainty of outcome.

A limited range of hybrid models are either mandated or contemplated in New Zealand by statute or in commonly used agreements. By way of example, but without wishing to deeply analyse each:

1. Disputes Tribunal referees are required, before determining a dispute, to assess whether the parties should be assisted to negotiate a settlement ;
2. The Crown Minerals Act 1991  similarly requires a conciliator to use best endeavours to encourage settlement;
3. Employment  Authority mediators can be authorised by the parties to decide the issues 
4. The Federated Farmers form of 50/50 sharemilker’s agreement considered in the Acorn Farms  decision discussed below, prescribes a process where the conciliator is required to assist the parties resolve the dispute but if they can’t to then issue a determination which becomes binding unless the parties object within 5 days;

In New South Wales, arbitrators acting in domestic disputes under the Commercial Arbitration Act 2010  may, with consent, mediate, conduct separate confidential meetings and subsequently arbitrate – after determining what confidential information obtained in private meetings should be disclosed.

Other jurisdictions give examples of hybrid processes with less jurisdictional constraint. In his paper for the AMINZ Conference 2013  Royden Hindle considers the approach of our South East Asian trading partners in particular and notes that  “We can hardly ignore the reality of med/arb given our trading links with Asia. As Keeneye  shows the process is alive and well In China. The Hong Kong Arbitration Ordinance (no 17 of 2010) provides rules for the process. So too does the Singapore International Arbitration Act and the Singapore Mediation Centre and Singapore International Arbitration Centre have a  detailed protocol as well”
​
Issues
What that cursory examination shows is that there are recognised reasons why participants would benefit from access to both processes. The difficulty is that, as discussed above, the “point” of each process is very different. So, aspects of each process are incompatible.

In his Paper for the AMINZ Conference 1994, P D Green notes an illustrative list in Table 2 to that Article, of tools which are the “bread and butter” of effective mediation practice which are inimical to adjudication. Caucusing, reframing, interest revelation and other hallmarks of the “omnipartial” mediation approach do not fit well with the more passively “impartial” role of the adjudicator. A mediator can be on everybody’s side. An adjudicator can be on nobody’s.
For me (at least) 3 fundamental issues arise:

1. Is there a single process that can safely marry elements of both arbitration and mediation?
2. If so, is that process so adulterated and “bland” as to rob either process of its real value?
3. To what extent can informed consent of the parties overcome otherwise unsafe consequences of the marriage?

Case Law
Those kinds of question were considered by Fisher J in Acorn Farms. His Honour began from the premise that (p. 122 line 20), “There is no difficulty combining the roles of mediator and conciliator but steps taken in a conventional mediation will often conflict with the requirements of a legally valid arbitration.” Essentially that conflict arises from the natural justice principles required to ensure a participant in arbitration has fair and equal opportunity to influence the arbitrator’s objective assessment. At p.128 line 45 the decision records “Because they have no determinative powers, mediators are not bound by the requirements of natural justice. There is no legal requirement that they be impartial.” By contrast (p. 129 line 10) “Arbitrators are…..bound by the strict requirements of natural justice….and must be impartial, equal and open in their dealings with the parties.”

For Justice Fisher, the question of whether there can be a safe marriage of the processes depends on who is the “dominant partner”. His honour (who, with respect, has an iconically adjudicative function) is comfortable grafting aspects of mediation onto an arbitration process but not with a process that results in a determination being made following a mediation that does not result in settlement. At p. 130 line 16, “The key, in my view, is that while limited aspects of mediation can be successfully engrafted onto a fundamentally conventionally arbitration, the reverse is unlikely to be true.” Because (line 37) “If the process starts out as a conventional mediation, the frank disclosures, open offers, mediator evaluations and/or caucusing likely to occur could pre-empt the natural justice requirements of any arbitration that may follow.”

Really, with respect, what His Honour considers appropriate seems to reflect what is contemplated by the High Court Rules, which permit the Judge to convene a settlement conference to assist a negotiated settlement on the basis that the Judge does not then proceed to hear and determine the matter except on matters of law or with consent.  For me, at the risk of getting stuck on labels, the kind of mediation interventions that  are contemplated by this approach are limited to “settlement”  interventions. The process with which the Courts are very familiar where a judge/ adjudicator can encourage a negotiated settlement but without the party engagement that the Acorn Farms decision raises cautions about,  has undoubted value. That value though is likely to be limited to the risk management and cost saving benefits for the parties (and the Court) of litigation being ended more quickly. It is unlikely to result in “resolution” of causal issues. That is not the “point” of those interventions.   
Further, to the extent that Acorn Farms represents  the current law in New Zealand, informed consent cannot infinitely extend the boundaries of acceptable process, as (p. 130, line 47), “….it is beyond the power of the parties to contract out of the fundamental requirements of natural justice.”      

Natural Justice
The question then becomes, what natural justice requires in this context, as whatever the parties’ preferences, any hybrid model will need to ensure those requirements are met.
The Acorn Farms decision (p122, line 25 and following) provides a helpful list of 5 precautions to be observed, if arbitration is to be formally combined with mediation. The word count does not permit them to be reproduced here. Of those 5, I suggest with respect, 4 are unexceptional as they involve ensuring that the participants are fully aware of the nature of the process and given opportunity to participate. Those are features of both processes. Where the real “rub” comes is in precaution “(b) the mediator-arbitrator may not receive information without the knowledge of both parties. This rules out the possibility of caucusing at any stage of the process;”

The essential concern is that the private engagement of the mediator with each party, typified by  the use of caucusing, creates a risk that if the mediator later dons an arbitrator’s hat and makes a binding decision, that decision will reflect information/ influence not known to and able to be answered by  both parties. 

I wonder whether that aspect of natural justice (“fairness writ large”) is over emphasised because of our historical reliance on adversarial models of dispute resolution.  Royden Hindle’s paper, referred to above, seems to suggest that jurisdictions which rely on a less adversarial and perhaps more investigative model  do not reflect those same concerns.  Scott Doahey compared the U.S. and Germany in a report of his that led to the conclusion that Germans “often encountered arbitrators participating in the settlement negotiations,” while in the U.S. this attitude was “very rarely” seen. Furthermore, 92% of Germans considered this attitude appropriate, while 71% of the U.S. sample group rejected that role of the arbitrator.”  Equally, in many other forums, commissions of enquiry and tribunals, affected parties are given opportunity  to present their position without right of reply. Culturally, if our legal system had evolved out of a model focussed more on enquiry than on combat, I doubt there would be the same level of concern .

I am not sure that where we are left today gives satisfactory answers to disputants, particularly in the “low value” family/community etc.  based disputes, who ask for a process where they are given every opportunity for resolution but with the added certainty of knowing that if there are matters they cannot resolved the,  by then well informed,  neutral will decide those matters for them. I suggest that is an entirely legitimate request.
What I think we can offer them under current law is:

1. A mediation without separate confidential mediator engagement/ caucusing , leading to arbitration if needed; or
2. An arbitration with the possibility of the arbitrator assisting with settlement negotiations.

Neither of those seems to me to be getting the best out of either process or to be what those disputants legitimately want.

Summary
There is nothing to stop disputants and the mediators/ arbitrators they engage entering into an agreement on whatever terms they choose.  Royden Hindle’s article (above) suggests that under the radar and perhaps more so in the rural South this is being done quite regularly without undue concern for the legal “niceties”.

The fact is though that if an award is issued following a med/arb process, consensual or not, that involved separate mediator engagement during the mediation phase, that award must be open to challenge on the basis of Acorn Farms. That is unsatisfactory for disputants and ADR professionals.

Adoption of a  Med/Arb model perhaps based on the Sharemilker’s agreement conciliation model or the NSW Commercial Arbitration Act (both referenced above)  which seem to recognise the value in both processes for disputants and have some protections against the effects natural justice “shortcuts” entailed in grafting them together would seem a valuable exercise.