In practice we will all have come across very many cases where the stresses of a relationship breakdown or other circumstances lead to behaviour by parent(s) that the children or the other parent need to be protected from. The Court's jurisdiction to quickly intervene and provide safety and structure is essential. In many of those cases, once appropriate protective Orders are in place, referral to FDR would provide a valuable opportunity for the parents to look at the children's needs, the circumstances driving the unsafe and/or unsustainable behaviours and to develop safe and sustainable plans for children's care that are respectful of the children's rights as well as mindful of the parties' situations.
I have done a lot of FDR mediation. Very very few have been by way of referral from the Court under section 46F and I have been at a loss to understand why - although to be fair there have been a few more recently. Colloquially I am told that in some Courts s.46F referrals are regularly made but that seems to be very much the exception rather than the rule. The far more common practice, it seems, is to appoint lawyer for child and very often L4C will convene a round table meeting (“RTM”) in an attempt to settle the issues before the court. Some practitioners I have spoken to think that is basically the same thing as FDR mediation. It is really that perception that I want to challenge.
RTM's are a tool I very commonly use in my practice as lawyer for child and I make no criticism of it. I know that many counsel who are appointed as lawyer for child are accredited FDR providers as well, so have all the necessary skills. I also understand how difficult it is for a lawyer for child or indeed for the Court, once it has a child's circumstances before it, to “let go” of the outcome to that degree and reconcile doing so with s.4(1) COCA. I acknowledge too that as FDR is currently practiced it is not always easy to feel confident that the children's views have the central role that s.6 COCA requires. What I do ask you to consider though is the fundamental difference between RTM and FDR mediation and the value for children in thinking about which of those quite distinct resources, in those particular children's circumstances, might be best able to provide an outcome that promotes their interests.
The clue to the difference between RTM and FDR lies in section 46F itself. Subsection 3 directs the judge to consider the prospect of the parties reaching an agreement on the resolution of the matters in dispute. “Resolution” is not the same as “settlement” as in “settlement conference”. RTM will inevitably occur in the context of defended court proceedings. The time and financial pressures on the Court system and on counsel participating tend to give a focus on finding an outcome that avoids the matter needing to progress further through the Courts. As chair of the meeting lawyer for child is not (and should not be) neutral and may well have strong views about the appropriate outcome. It may be very difficult for the parties in that concentrated environment to resist an outcome that aligns with those views. That is not a criticism of L4C, that is their role.
Very often the RTM will result in an outcome that settles the issues that the judge would otherwise need to decide. The children's reality most often though is that once once the Court and lawyer for child are no longer involved, they will be dependent on the parties to make the care arrangements work safely and effectively for them. If the settlement achieved through RTM does not take into account the parents' fundamental interests and perspectives, whether or not they might be legally relevant in a litigation context, there is a much reduced prospect of the arrangements working well and sustainably for the children. That risk is exacerbated by s.139A.
At Parenting Through Separation a tool I have found really helpful for parents is the picture of a pyramid - the peak represents what that Court (and RTM) can provide – clear, enforceable and certain arrangements. If the base of the pyramid - the basic “stuff” necessary for those parents to be able to parent cooperatively - is not sound the peak cannot stay supported. (conversely if the base is strong the peak is easy to get to). That is often where the time in FDR mediation goes.
When mediating as an FDR Provider, the expectation is that I several hours mediation time often over multiple sessions. The aim of the mediation (as I practice it anyway) is to apply mediation skills to identify and give light to the parties key interests, help them identify, articulate and agree on the children's key interests and develop plan for their parenting of the children that meets those interests into account – in short developing a sustainable parenting plan for those particular parties. To me that represents resolution at a different depth than settlement of legal issues. I have not yet chaired an RTM as lawyer for child where there has been the time or agenda to undertake that exercise (good luck getting a 6 hour extension to the L4C allocation so you can).
FDR mediation is not safe or appropriate for all parenting disputes. My request though is that instead of assuming that because a file started in Court it must stay within the Court processes you are in the habit of using, think about whether it is in the child(ren)'s interests that the parties have an opportunity to try and “resolve” the issues.