Compulsory mediation: prepared for the paradigm shift

1
Compulsory mediation prepared for the paradigm
shift?

• Presented by
• Andrea Cotter-Moroz
• Barrister, Mediator FDRP
• National Mediation Conference
• 11 September 2008

2
INTRODUCTION

• Mandatory referral to ADR not new
• - pre-action case management
• - s26 of Civil Procedure Act 2005 NSW
• Mandatory pre-litigation ADR not new
• - personal injury claims - QLD
• - workers comp damages claims NSW
• - farm debt actions - NSW
• - retail leases - NSW and Victoria.
• - parenting matters from 1 July 2007

3
WHAT IS FAMILY DISPUTE RESOLUTION (FDR)?

• Under s10F FDR is a process in which an
  independent FDR practitioner (FDRP) helps people
  to resolve some or all of their disputes
• FDR is about resolution, not therapy
• Under s10G an FDRP is a person accredited
• as such

4
FAMILY DISPUTE RESOLUTION

• FDR introduced in 3 phases
• - Phase 1 - from 1 July 2006 pre-action
• procedures for all parenting cases
• - Phase 2 - from 1 July 2007 s60I
• certificate to be filed with all fresh
  applications
• - Phase 3 - from 1 July 2008 s 60I certificate
  to
• be filed with all applications
• Limited exceptions from requirement for
  certificate s60I(9)

5
STATUTORY REGULATION OF FDR

• FLA and Regs regulate FDR
• Complex matrix of obligations and protections
  controlling FDR is new
• High level statutory regulation of ADR services
  here to stay?

6
REASONS FOR INCLUSION OF SUCH EXTENSIVE CRITERIA

• FDRP performs a gateway role
• Court must not hear application unless s60I
  certificate given (unless exception applies)
• Quality assurance
• Consumer protection
• Appropriate assessment for FDR undertaken
• Measurable standards of competence for FDRP
• Generational shift public education
  support for separating families
• Cultural shift - away from litigation

7
ROLE OBLIGATIONS OF FRDPS

• FDRPs professional obligations
• Accreditation inclusion of the Register - s10G,
  Reg 60D Rules
• Provide S60I certificates - s60I(8), Reg 62A
• Providing information
• - on FDR - Reg 63
• - on services that assist reconciliation -
  s12G
• - in cases involving family violence or child
  
• abuse - s60J
• - about parenting plans - s63DA(1)-(3),
  63C(2)

8
FDRPS PROFESSIONAL OBLIGATIONS

• Meet confidentiality (s10H) admissibility
  (s10J) requirements
• Assess suitability of FDR - Reg 62
• Obligations of FDRPs (general) - Reg 64
• Avoid conflicts of interest - Reg 65
• Ongoing professional development requirements
• Ongoing registration administrative requirements
  - Reg 60F

9
IS FDR DIFFERENT TO MEDIATION?

• Differences real and substantial - reflect role
  and obligations of FDRP delivering FDR under
  FLA and Regs - Reg 64
• Mediators provide their services outside the
  complex matrix of the FLA and Regs.
• Currently, both pathways (FDR and mediation) are
  available
• Whether/should both pathways continue to be
  available - discussion still open.

10
ACCREDITATION FOR FDRP

• Current Accreditation Rules interim only - from
  1 July 2007 30 June 2009
• Final Accreditation Rules effective from 1
  July 2009
• - A set of nationally consistent standards
• new competency based qualifications developed by
  Community Services
• Health Industry Skills Council
• Vocational Graduate Diploma in Family
• Dispute Resolution
• Expectation that FDRPs required to meet
• the Final Accreditation Rules by 1 July 2009 for
  registration

11
Types of S60I Certificates

• 4 types of certificates
• Non-attendance due to other party refusal or
  non-attendance s60I(8)(a)
• Non-attendance due to FDRP considers matter
  inappropriate - s60I(8)(aa)
• Attendance and genuine effort to resolve issues
  s60I(8)(b)
• Attendance but no genuine effort to resolve
  s60I(8)(c)
• NB. Court may take kind of certificate into
  account referral to FDR and/or awarding costs

12
EXCEPTIONS

• Under s 60I(9) certificate not needed when
• Orders by consent s60I(9)(a)(i)
• Responding to an application s60I(9)(a)(ii)
• Reasonable grounds to believe
• - child abuse/risk of abuse
  s60I(9)(b)(i)/(ii)
• - family violence/risk of violence
• s60I(9)(b)(iii)/(iv)

13
EXCEPTIONS

• Contravention application re order made in
• past 12 months with serious disregard for
  obligations s60I(9)(c)
• Urgency s60I(9)(d)
• Unable to participate effectively s60I(9)(e)
• Other circumstances in Regs s60I(9)(f)
• NB. Even if s60I(9) applies, Court must still
• consider ordering attendance at FDR - s60I(10)

14
ROLE OF CERTIFICATES

• Relate to the process of filing only
• Reflects an individuals FDR health at a
• given time
• May be fluid and multiple certificates possible
• Treatment of multiple certificates for the
• court and not FDRPs

15
ROLE OF CERTIFICATES

• Application of exceptions matter for the court
• FDRPs not to advise or assess eligibility for
  exceptions
• FDRP can provide appropriate information re what
  circumstances needed to seek exception

16
WHEN TO ISSUE CERTIFICATE

• If a party specifically requests it
• If issuing a certificate, then good practice to
  issue it to all parties
• Can be issued up to 12 months after FDR
• Record-keeping is important
• FDRP must be registered at time certificate is
  issued

17
HOW TO DETERMINE WHICH CERTIFICATE TO ISSUE?

• FDRP to issue the appropriate type of
• certificate
• using own professional judgment
• assessing each case on its merits
• may involve balancing competing issues eg
  grief/loss against timely access to FDR
• be aware of possible forensic advantage in
  delaying engaging in FDR
•  

18
NON-ATTENDANCE CERTIFICATE

• FDRP must be satisfied that
• - two contacts (including one in writing) have
• been made- reasonable appointment times
  offered- the party advised that court may refer
  parties
• to FDR and/or award costs
• Requirements under Reg 62A(4) for FDRPs are not
  meant to be onerous

19
NOT APPROPRIATE CERTIFICATE

• FDRP make a clinical assessment, based on
• their professional judgment
• FDRPs not to determine or make factual judgements
  about the veracity of claims
• Not necessary for FDRP to meet all parties to
  assess appropriate/inappropriate for FDR
• Correct time for assessing not appropriate
  certificate is before FRD commenced

20
Not Appropriate Certificate

• If issuing a not appropriate certificate then
  cannot commence FDR
• Cannot issue a not appropriate certificate after
  FDR commences
• If FDR commenced then assessed not appropriate,
  correct type of certificate to issue is genuine
  effort certificate or no genuine effort
  certificate

21
NO GENUINE EFFORT CERTIFICATE

• Has caused the most difficulties in practice
• No statutory guidance provided as to what
  constitutes genuine effort
• A wide range of legitimate views about what
  constitutes genuine effort possible

22
NO GENUINE EFFORT CERTIFICATE

• FRSA ( Dec 2007) reported 3 positions adopted
  in
• practice
• onus on parties to prove genuine effort eg. by
  compromise or moving from original position
• simply attending or participating amounts to
  genuine effort
• there could never be circumstances to justify
  issuing a not genuine effort certificate

23
NO GENUINE EFFORT CERTIFICATE

• Court may take this type of certificate into
  account in ordering costs against a party
• Some FDRPs reluctant to issue this type of
  certificate because
• - fear of being sued if adverse costs order made
• - statutory immunity has been removed

24
IS THE FEAR JUSTIFIED?

• NADRAC says FDRPs should not be concerned as
  immunity can be the subject of contractual
  agreement
• AGD says the potential for client to sue FDRP is
  very limited because of the confidentiality and
  admissibility requirements
• But validity of such contractual clauses and
  protections afforded by confidentiality and
  admissibility requirements are yet to be fully
  tested in the context of such extensive statutory
  regulation

25
SO WHAT IS GENUINE EFFORT?

• AGD gives some guidance
• is not a term of art
• has no meaning other than its everyday usage
• is not the same as good faith
• is not necessary for parties to make concessions
  or move from original position
• is to be assessed by the professional FDRP
• FDRPs must use their professional competency and
  judgment about the parties efforts
• it involves both objective and subjective
  elements

26
PRACTICE GUIDELINES?

• AGD says not its or the role of legislation to
  outline how FDRPS should make professional
  judgements in relation to genuine effort
• FDRPs and other stakeholders should
  collaborate and formulate clearly articulated,
  unambiguous practice guidelines to reflect a
  shared understanding of what constitutes genuine
  effort

27

• Introducing practice guidelines can
• ensure greater consistency
• minimize inappropriate FDR practices
• facilitate transparent decision making processes
• transparent decision making processes will assist
  FDRPs
• - in advising clients, in writing, about when
  and how decisions will be made
• - hopefully reduce potential client
  dissatisfaction
• - enhance client satisfaction with service
  delivery generally and so raise the profile of
  FDRPs

28
WHEN DOES FDR COMMENCE?

• At intake? At assessment? Coaching phase?
• Or only when parties in dialogue ( AGDs view)
• Regs 62,63, 64 not appropriate certificate
  support AGDs view
• Reg 62- FDRP obliged to assess for suitability
  for FDR prior to FDR
• Reg 63 FDRP obliged to provide information
  prior to FDR
• Can only issue not appropriate certificate before
  FDR
• Reg 64 obligations when FDRP is providing FDR
  ie. after FDR has commenced

29
WHY IS COMMENCEMENT OF FDR IMPORTANCE?

• Clarity essential to determine admissibility
  protections under s10J FLA
• If intake, assessment, coaching is not FDR, then
  notes, related information including
  conversations maybe subject to subpoena and
  admissible
• Remedy exclude by contract
• Such exclusion clause yet to be tested within
  highly regulated FDR regime

30
LOSS OF STATUTORY IMMUNITY

• S 19M of FLA provided statutory immunity
• for mediators now removed
• NADRAC and LCA recommended removal of immunity
• Basis FDRPs can limit liability by contract
• ss 10H 10J of FLA provide
  protection
• Distinguished between court annexed FDRPs and
  community based FDRPs - can limit liability

31
CONTRACTUAL LIMITATION OF LIABILITY

• Such exclusion clauses yet to be tested
• Such extensive statutory criteria necessary for
  quality assurance and consumer protection in
  pre-filing FDR
• Validity of such clauses likely tested within
  statutory matrix so expect greater scrutiny
  vigilance

32
CONCLUSION

• To ensure the resolution pendulum keeps
• swinging away from litigation requires
• maintenance of high standards of service
• demands professional competence, training,
  accreditation quality controls to be in place
  and regularly monitored
• controls can be from practice level ( guidelines)
  to government initiative (legislation)
• In FDR landscape, involved government initiative
  - introduction of complex matrix of statutory
  regulation of FDR FDRPs

33
THE PARADIGM HAS SHIFTED

• Complex matrix of statutory regulation of
• FDR is crucial to
• consistently deliver high quality FDR services
• build consumer confidence
• educate and protect consumers
• in the new age of mandatory pre-litigation
  dispute
• resolution