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/parenting coordinator (PC) 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 PC has the power to:
Make directives binding on the parties and the child until a Court of competent jurisdiction orders otherwise, limited to the following specific aspects:
The PC is not authorised to make binding directives regarding:
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 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/parenting coordinator (PC) 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 PC has the power to:
- assist the parties in implementing and complying with the provisions of the parenting plan;
- mediate joint decisions in respect of the child;
- make recommendations in respect of any issue concerning the welfare and/or affecting the best interests of the child, which shall not be binding upon the parties unless they constitute directives made pursuant to paragraph 9.4.5 below;
- engage the services of an expert professional to assist him/her to make recommendations that have a bearing on the child, provided the parents have agreed on the costs of such expert;
Make directives binding on the parties and the child until a Court of competent jurisdiction orders otherwise, limited to the following specific aspects:
- the time, place and manner in which the child will be transported and exchanged between the parents during weekend and holiday contact periods;
- the variation of weekend or holiday contact arrangements which do not substantially alter the basis of the time-share allocation provided for in this parenting plan;
- child-minding arrangements during contact periods;
- the manner and method of parental communications;
- the time, manner and frequency of telephonic and video contact;
- contact with third parties.
The PC is not authorised to make binding directives regarding:
- the child's primary residence arrangement;
- contact periods which substantially alter the basis of the time share allocation in terms of the parenting plan;
- guardianship of the child;
- the child's relocation.
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 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.