When the Family Court was established in 1975 it was one of the first jurisdictions to embrace alternative dispute resolution.
For the first 25 years of the court's operation, when a husband and wife were in dispute over property they would be referred to a dispute resolution conference called a ‘conciliation conference’. Conciliation conferences were run on the basis that a lawyer employed by the court, known as a Registrar, would conduct an informal negotiation session over approximately three hours between the husband, the wife with their respective lawyers present.
The conciliation conference process was highly effective and has since been adopted by many jurisdictions including commercial and industrial jurisdictions right around Australia.
The Federal Government has become increasingly concerned about the cost of the family law system in Australia and, over the past few years, has shifted the cost burden for conferences onto litigants themselves.
In Australia at the moment there is a trial being conducted in the northern region of the family law jurisdiction (which extends from the north coast of NSW into far north Queensland). Under that system, if the asset pool in dispute by the husband and wife is less than $200,000, the litigants will be referred to a court-ordered mediation conducted by Relationships Australia. They don't have to pay for the mediator but they do have to pay for their own lawyers.
Where the asset pool exceeds $200,000, the court merely orders that the parties attend a private mediation to be funded and agreed upon by them. The theory is that the private sector will establish which mediators are efficient and that the free market economy will quickly determine the model.
The pilot project has been extremely successful - over 85% of all private mediations have resulted in settlement. This is higher than the settlement rate from court-ordered conciliation conferences.
The private mediation model has now been introduced in Sydney with all litigants in the Federal Magistrates Court being strongly encouraged to participate in private mediation, or ordered to do so even though they have had a conciliation conference with a Registrar. Hopefully, the percentage of cases settled in Sydney will increase as it has for its northern neighbours.
You can expect over the next year or so for clients to ask you about mediation and conciliation. If you have any queries, please do not hesitate to contact a member of our family law team.