The Chief Justice of the Family Court, Alistair Nicholson, and the Federal Attorney-General, Daryl Williams, have engaged in an ironic adversary slanging match over the use of mediation as an alternative to litigation in the Family Court.
Last week Mr Williams called on the Family Court to recognise mediation as a “”genuine alternative to litigation . . . not as an inferior compromise.” He accused the court of hiding its mediation services, saying, “”A Family Court client might be lucky to find information at Family Court registries about community-based mediators.”
Mr Williams drew immediate fire from Justice Nicholson who pointed out that the court introduced mediation services in an unfunded initiative in 1991. The lack of funding for it meant that it had never been able to reach its full potential.
Mr Williams, it appears, has got the right idea, but he picked a poor example. Indeed, it appears that both of these legal luminaries have valid points, but their adversary approach to the question has disguised the true picture.
Of all courts in Australia, the Family Court has by a long way done the best in resolving disputes without recourse to the full expense, delay and rigors of an adversary hearing. The court provides a neutral mediator to seek agreement over custody and property. Sixty-four per cent of couples reach full agreement, saving huge amounts in legal fees and emotional anguish. A further 11 per cent reach partial agreement and 25 per cent fail to reach agreement. Also, a great many cases that begin in the Family Court never get to trial because the parties agree on a settlement without mediation.
Of course, the family jurisdiction has a lot of parties who simply cannot afford the price of our Rolls Royce system of adversary justice which enables parties to basically run their own case and explore and test every avenue to get a win. For a lot of these people, the system has simply priced itself out of the market. On the other hand, the family jurisdiction contains perhaps a greater percentage of emotionally charged people who will fight despite financial self-destruction.
It also has a fair proportion of people on legal aid. These have been a major concern of Mr Williams who has expressed the fear that ever increasing Commonwealth funding for legal aid has not necessarily delivered better outcomes.
In the family jurisdiction, until fairly recently, it was possible for a legally aided party to drain the other party into submission.
Mr Williams has ruled out further increases in legal aid, and he is right to do so. He has called on the courts to find ways of reducing costs. He rightly points out that since the introduction of legal aid 20 years ago trials have got longer and more complex.
There may have been other factors, but legal aid appears to have caused longer trials. Legal aid appears to be like freeways — the more you provide the more cars there are to clog them up. The more legal aid is available the more lawyers are willing to spend it. There is some reverse evidence to back this view. Melbourne family-law solicitor Tim Mulvany has been reported in the journal of the Law Institute of Victoria as saying that since the legal aid cuts solicitors have been put on lump sum deals to do cases, rather than hourly rates. The result has been fewer cases of legally aided parties racing off to court with endless trivial applications.
The fixed rate gives the solicitor an incentive to force the parties to see commonsense and settle cases more quickly.
Mr Mulvany would like to se a strengthening in the Family Law Act to empower judges to stop parties making trivial applications.
To some extent the ball is in the court of Mr Williams and his parliamentary colleagues, not just the judges’ court. Legislation should be simpler; changes to give judges more power and lawyers less power over litigation are needed; better technology is needed in the courts; more money is needed for alternative dispute resolution, or better still incorporate the better elements of alternative dispute resolution into the court system. It would be better to spend public money this way than to waste so much on legal aid and on private expenditure on lawyers.
Mr Williams and Justice Nicholson are talking about the same thing: giving people access to a dispute-resolution that is not ridden with cost and delay.