Family Court

Mediation Conference

Introduction
What is mediation?
Counsel-led mediation
What kind of cases go to Counsel-led mediation?
What happens at mediation?
What happens if one person refuses to come to mediation?
Judge-led mediation
What kind of cases go to a mediation conference?
Where is a mediation conference held?
What happens at the mediation conference?
What happens if one person refuses to come to the mediation conference?
Will the same Judge run any later Court hearing?
Who can come to Counsel-led and Judge-led mediation?
What happens to any agreement reached at mediation?
What if no agreement is reached?
Can mediation take place more than once?
Can things said during mediation be used in Court?
Need more information or advice?
Legal Aid

Introduction

The Family Court encourages people to sort out their disagreements themselves. The first step is counselling. But if counselling doesn't solve the problems, the Family Court can be asked to make an order sorting the matter out. In that case, the first thing the Court is likely to do is refer the parties to mediation.

What is mediation?

Mediation is a chance for both sides to discuss their differences and try to reach agreement. There are two types of mediation in the Family Court:

• Counsel-led mediation: this takes place away from the Court and is carried out by a lawyer, who is also a qualified mediator, appointed by the Judge.
• Judge-led mediation: this takes place at a Court and is carried out by a Family Court Judge.

Counsel-led mediation

Generally, mediation will be carried out by a lawyer who is also a qulaified mediator appointed by the Judge. Mediators must be approved by the Court and follow the Ministry of Justice Guidelines for Counsel-led mediation.

Counsel-led mediation will generally by carried out at facilities provided by the mediator.

What kind of cases go to Counsel-led mediation?

Counsel-led mediation is generally held when someone has asked the Family Court to make a decision about the care of a child.  This is usually an application for a parenting order. This says who is responsible for the day-to-day care of a child, and when and how someone else important in the child's life can have contact with them.

The parties will usually have completed counselling but sometimes mediation will start before counselling has finished or they may be referred to mediation straight away as an alternative to counselling.

What happens at mediation?

Each mediator has their own particular way of running mediation. But usually the first thing they will do is try to find out exactly what the disagreement is about, and see if there are any issues that can be agreed on at the start.
They will encourage both sides to discuss the disputed issues and, if possible, reach agreement on some or all of them. The mediator will help make sure all the possible options are considered, and, if the case involves children, help focus the discussion on their needs.
Before any agreements are written down, the parties will be given time to talk with their lawyers if they want to.
Mediation should usually take no more than half a day.

What happens if one person refuses to come to mediation?

If one person refuses to come to mediation, the matter will be referred to the Court so a Judge can decide what should happen next. The Court cannot order a person to come to Counsel-led mediation.

Judge-led mediation

Judge-led mediation is called a mediation conference. 
A mediation conference is a chance for both sides to discuss their differences with a Family Court Judge, and to try to reach agreement. The Judge runs the conference, and makes sure each person gets a chance to say what they think.

What kinds of cases go to a mediation conference (Judge-led mediation)?

Mediation conferences can be held whenever someone has asked the Family Court for one of the following:

• a parenting order - this says who is responsible for the day-to-day care of a child, and when and how someone else important in the child's life can have contact with them. 
• a separation order - this make arrangements for couples to live apart.
• a maintenance order - this requires a person to pay some or all of their ex-spouse or -partner's living costs.
• a declaration that a child is in need of care or protection - this is where the Family Court decides that a child needs care or protection because they have, for example, been harmed or neglected.

In these cases the Court must arrange a mediation conference if a Judge says it should do so or if one of the parties asks it to do so (including the child, if someone has applied for a declaration that they need care or protection).

In care and protection cases, the child can request a mediation conference. If a child requests a mediation conference, the Court must arrange one.

Where is a mediation conference held?

Mediation conferences are held at the Family Court, but they are more relaxed and less formal than a Court hearing. Some larger Courts have special rooms for mediation conferences, with a large table for everyone to sit around.

What happens at the mediation conference?

Each Judge has their own particular way of running a mediation conference. But usually the first thing the Judge will do is try to find out exactly what the disagreement is about, and see if there are any issues that can be agreed on at the start.

Next, the Judge will encourage both sides to discuss the disputed issues and, if possible, reach agreement on some or all of them. The Judge will help make sure all the possible options are considered, and, if the case involves children, help focus the discussion on their needs.

Before any agreements are written down by the Judge, the parties will be given time to talk with their lawyers if they want to.

What happens if one person refuses to come to the mediation conference?

The Court can order them to come on another day by sending them a summons.

Will the same Judge run any later Court hearing?

They can do. But in some cases Judges who run mediation conferences may decide that they shouldn't also be the Judge at the later Court hearing.

Who can come to Counsel-led and Judge-led mediation?

The people having the disagreement need to be there. They can have their lawyers there too if they want, to help and advise them.

If the disagreement involves a child, and the Court has appointed a lawyer for the child, that lawyer can also be there.

Lawyers are encouraged to take a back seat during mediation. The people having the disagreement should do most of the talking.

Support people and wider family can also come to mediation if the Judge or mediator allows it and no-one else objects.

If a mediation conference is held, and the dispute is about day-to-day care of or contact with children, they also have the right to be at any later Family Court hearing if mediation doesn't resolve the dispute.

What happens to any agreement reached at mediation?

Any agreement reached can simply be written down at the end of mediation, or can be used as the basis for a written agreement later on. The agreement might deal with arrangements for separation or for the care of a child, for example.

Alternatively, the Judge can be asked to turn the agreement into a Court order. This is called a consent order, because the Judge can make the order only if the parties agree it should be made. If later on either person breaches the consent order, the other person can get the Court to enforce the order in the same way as any other Court order.

If the agreement is reached during Counsel-led mediation, the parties' lawyers will need to file the draft orders with the Court so that they can be referred to a Judge.

What if no agreement is reached?

If it is clear that no agreement is going to be reached, the Judge or mediator can stop the mediation so that the parties have more time to think about their options, find out more information, or try to sort out a temporary arrangement.

The Judge will usually make directions about what the next steps in the case will be. Counselling can also be arranged to help work towards a solution.

If the disagreement involves a child, the Judge may appoint a lawyer to represent the child, if that hasn't already been done. The Judge may also call for a specialist report on the child, such as a psychologist's report.

Can mediation take place more than once?

There is no limit on the number of times people can ask for mediation. But if it seems unlikely that mediation will lead to an agreement, the Judge can order that the dispute go to a Family Court hearing, and can set out what has to be done to help that happen.

Can things said at mediation be used in Court?

No. Nothing said at a mediation conference can be brought up at a later Court hearing.

Need more information or advice?

For more information or advice, click on the links below to other pages or pamphlets on this site, or contact a family lawyer (www.familylaw.org.nz), a community law centre, or the nearest Family Court office.

Legal aid

Anyone who needs a lawyer but can't afford one may be able to get legal aid. This is where the Government pays some or all of the lawyer's bills (sometimes you may have to pay some or all of it back).

You can get information on legal aid by:

• contacting the local Legal Services Agency office (see the blue Government pages at the front of the phonebook)
• visiting the Legal Services Agency website at www.lsa.govt.nz, or
• seeing a lawyer and discussing legal aid with them.

Legal aid is available for all Family Court cases, except dissolution of marriage (divorce).