Judge Joe Harman
1.30 in Wilarra
Since 2006 it has been necessary for Australian litigants to attend or explore attendance at Family Dispute Resolution before commencing parenting proceedings. However, neither the Family Law Act nor the Commonwealth Civil Dispute Resolution Act require any attempt at Family Dispute Resolution or mediation before commencing property adjustment proceedings. This is at a time of dramatically increasing workloads and diminishing Court resources.
For 3 months in late 2014 Judge Harman obtained data with respect to each of the property adjustment matters that came into his docket – 80 matters in total – and discovered that in only 2 of these 80 matters (or 2.5% of cases) had the parties attended mediation. Those matters were then reviewed 6 months later at which point 47 (or nearly 60%) had resolved.
In the same period data from 296 cases involving parenting applications was collected to determine attendance at “mandatory mediation” and the impact this regime is having on Court filings and settlement of cases. Using this data and a consideration of relevant literature this paper will explore the question “should mediation be the first step in all family law proceedings?”