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resolution strategy.”981

9.49It should be noted that 51% of the referrals were from a solicitor982 or legal aid, 24% were from the family court staff, and 13% from other agencies, which included legal advice centres.  Sixty-five per cent of female clients and 54% of male clients had consulted or retained a lawyer at the time they attended mediation.983

Timing of mediation

9.50The evaluation report found that mediation is most successful when carried out before proceedings have issued.  In one research study referred to in the evaluation report, those who attempted mediation prior to involvement with the court recorded a success rate of 79%, compared with 44% for those mediated after court proceedings had terminated.984

9.51The Family Court survey concluded that:

“couples with current court applications have a significantly reduced chance of a successful outcome.   The presence of a ‘litigation shadow’ is not conducive to positive outcomes and has the potential to interfere with the couple’s capacity to be reasonable and conciliatory on the issues under discussion”.

Comments on Family Court evaluation

9.52The Access to Justice Advisory Committee found the evaluation report on the Family Court Mediation Service pilot project encouraging, but noted that “it did not attempt to ascertain why combined property and custody disputes appear to have a higher rate of settlement than matters raising only one of those issues”.985  The Committee indicated that a possible explanation was that given by Neely,986 that women may be pressurised by their husbands to compromise their property entitlements in order to gain custody.  The committee also criticised the fact that the research “did not include any comparative analysis of other mediation programs”.  They warned that as the co-mediation model is unique, care must be taken with comparisons with other models.987

981 Ibid at 8.

982 Section 16A of the Family Law Act 1975 then stated that the Family Court and legal practitioners had an obligation to direct the parties’ attention to facilities provided by the court to assist them and their children to adjust to marital breakdown.  This had, no doubt, an influence on early referral to mediation by lawyers.  The report was completed before the amendments to the 1975 Act introduced by the 1995 Act.

983 Supra at 6.

984 Ibid at 24.

985 Access to Justice, An Access Plan, Report of the Access to Justice Advisory Committee (1994), Paragraph 11.26.

986 “The primary caregiver parent rule; child support and the dynamics of greed” (1984), 3 Yale Law and Policy Review 168.

987 Paragraph 11.26 supra.

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