Dispute Resolution in Family Law
Conflict and dispute-resolution mechanisms for parents
The Children’s Act states that in any matter concerning a child, an approach that is conducive to conciliation and problem-solving should be followed, a confrontational approach should be avoided, and a delay in any action or decision to be taken must be avoided as far as possible.
Parenting plans should be amicable accords between parties that will assist the separating family unit in the long term. Parents must work together to reach a joint agreement, rather than remain in conflict with each other. High conflict situations will have a negative effect on the family’s functioning, leading to dysfunction. The parenting plan usually contains a dispute-resolution clause whereby a facilitator can be appointed. This is a somewhat controversial concept. The facilitator is normally appointed with the agreement of both parties and is usually a qualified clinical psychologist specialising in dispute resolution in broken homes.
The facilitator has the power to:
In so far as a facilitator has the power to make decisions in respect of a minor child, the power must be exercised in the best interests of the child and will be binding on the parties, unless the High Court, as upper guardian of children, orders otherwise.
A facilitator’s services involve elements of mediation, expert opinion and counselling, but do not purely fall into any of these categories. The facilitator is not appointed as a psychotherapist, counsellor or attorney for the child or the parents. No therapist/patient or attorney/client relationship is created or otherwise exists between the facilitator and any of the parties involved. The facilitator’s fees are normally shared between the parties.
The facilitator will follow a procedure to resolve disputes and/or may issue directives when the parties are unable to reach agreement on any issue where a joint decision is required or where the child’s welfare has become contentious. If such a dispute arises, it must be referred in writing to the facilitator who will attempt to resolve the dispute as speedily as possible and without recourse to litigation.
If the facilitator is unable to resolve a dispute by way of mediation, he/she may resolve the dispute by issuing a directive, which will be binding on the parties subject to the provisions therein. Both parents, and the child if necessary, will participate in the dispute-resolution process as requested by the facilitator.
The facilitator will conduct informal proceedings, and is entitled to receive information via telephone, correspondence, email, etc. The facilitator will use his/her discretion in considering the weight and sufficiency of information provided, and may expand the enquiry as he/she deems necessary.
The facilitator will determine the protocol of all communications, interviews and sessions, including who must attend meetings, but parties will be permitted to consult their legal representatives, either in person or by telephone, during such meetings. The parties and their attorneys will have the right to initiate or receive oral communication from the facilitator. Any party or counsellor may communicate in writing with the facilitator provided that copies are given to the other party and, if applicable, their legal representatives.
The facilitator may confer individually with the parties and with others, including but not limited to step-parents, step-siblings, extended family members and friends, permanent life partners, household members, school and educational personnel, care providers and healthcare providers for the child and therapists for the child and the parents. The parties must authorise such persons to provide information to the facilitator.
Parenting plans should be amicable accords between parties that will assist the separating family unit in the long term. Parents must work together to reach a joint agreement, rather than remain in conflict with each other. High conflict situations will have a negative effect on the family’s functioning, leading to dysfunction. The parenting plan usually contains a dispute-resolution clause whereby a facilitator can be appointed. This is a somewhat controversial concept. The facilitator is normally appointed with the agreement of both parties and is usually a qualified clinical psychologist specialising in dispute resolution in broken homes.
The facilitator has the power to:
- facilitate joint decisions in respect of the children;
- regulate, facilitate and review the contact arrangements in respect of the child;
- make recommendations on any issue concerning the welfare and/or affecting the best interests of the child;
- issue directives binding the parties on any issue concerning the welfare and/or affecting their best interests of the child (subject to a court of competent jurisdiction holding that such directive is not in the child’s best interests);
- resolve conflicts relating to the clarification, implementation and adaptation of the parenting plan;
- require the parties and/or the child to participate in psychological evaluations or assessments;
- engage the services of an expert professional to assist him/her to issue directives that have a bearing on the child; and
- co-opt the services of a co-facilitator when reasonably necessary.
In so far as a facilitator has the power to make decisions in respect of a minor child, the power must be exercised in the best interests of the child and will be binding on the parties, unless the High Court, as upper guardian of children, orders otherwise.
A facilitator’s services involve elements of mediation, expert opinion and counselling, but do not purely fall into any of these categories. The facilitator is not appointed as a psychotherapist, counsellor or attorney for the child or the parents. No therapist/patient or attorney/client relationship is created or otherwise exists between the facilitator and any of the parties involved. The facilitator’s fees are normally shared between the parties.
The facilitator will follow a procedure to resolve disputes and/or may issue directives when the parties are unable to reach agreement on any issue where a joint decision is required or where the child’s welfare has become contentious. If such a dispute arises, it must be referred in writing to the facilitator who will attempt to resolve the dispute as speedily as possible and without recourse to litigation.
If the facilitator is unable to resolve a dispute by way of mediation, he/she may resolve the dispute by issuing a directive, which will be binding on the parties subject to the provisions therein. Both parents, and the child if necessary, will participate in the dispute-resolution process as requested by the facilitator.
The facilitator will conduct informal proceedings, and is entitled to receive information via telephone, correspondence, email, etc. The facilitator will use his/her discretion in considering the weight and sufficiency of information provided, and may expand the enquiry as he/she deems necessary.
The facilitator will determine the protocol of all communications, interviews and sessions, including who must attend meetings, but parties will be permitted to consult their legal representatives, either in person or by telephone, during such meetings. The parties and their attorneys will have the right to initiate or receive oral communication from the facilitator. Any party or counsellor may communicate in writing with the facilitator provided that copies are given to the other party and, if applicable, their legal representatives.
The facilitator may confer individually with the parties and with others, including but not limited to step-parents, step-siblings, extended family members and friends, permanent life partners, household members, school and educational personnel, care providers and healthcare providers for the child and therapists for the child and the parents. The parties must authorise such persons to provide information to the facilitator.
