Family feuds — litigate, arbitrate or mediate?
Now that we have received the report from the Independent Panel’s review of the family justice reforms and also following the release of the Law Commission’s report on suggested changes to the Property (Relationship) Act 1976, we ponder other areas of family law where similar access to justice issues that affect families arise. These are specifically issues relating to decisions over property or personal care under the Protection of Personal and Property Rights Act 1988 and the Administration Act 1969.
Typically, these disputes are driven by emotion and complex family relationships. Often, they can be time-sensitive and fraught with financial implications for the parties involved.
It is well established that the costs associated with bringing a dispute to court – including legal and court costs – together with the delay in getting time before a judge create an access to justice issue. We all know this. In her statement following her appointment as Chief Justice, Justice Winkelmann said:
“Access to justice is the critical underpinning of the rule of law in our society: it is the notion that all, the good, the bad, the weak, the powerful, exist under and are bound by the law. That condition cannot exist without access to courts, and without the ability to obtain a just resolution of claims before those courts. Cost, delay and a lack of representation all can act as barriers to justice.”
Even if a person can afford to start down this path, the damage to family relationships can be devastating and echo through generations to come. The reality is that many of these disputes are over relatively small amounts of money which can mean there may not be very much left for them by the time they reach the end of this process. Even if the person is eligible for legal aid, it is not a free service and they may be required to pay any “winnings” back to the Ministry of Justice.
So, what can lawyers, arbitrators and mediators do?
As dispute resolution practitioners all of us can assist clients to look at alternatives to court applications. Lawyers giving clients legal advice are vital, especially when they can help clients consider alternatives such as arbitration and mediation.
Arbitration as an alternative
Usually cheaper, often quicker, and widely used overseas, arbitration is an alternative to a court process. Arbitration can be tailored to suit the needs of the parties and the complexity of the dispute. The level of formality is determined by the parties, the parties choose the person who will decide the dispute and a decision will be made quickly. Both the process and decision are confidential, which can limit the harm done. Arbitration can be used with mediation to great effect. For example, in a recent relationship property case, parties reached agreement on all but one issue – whether a portion of the funds used for the purchase of the family home were relationship property or a debt owed to one of the parties’ parents. The impasse created an opportunity for arbitration to finalise their relationship property. The ability to use mediation and arbitration enables parties to reach their own agreements but also provides them with the opportunity to have a quick and cost-effective determination should there be outstanding issues.
Even during arbitration, parties can reach an agreement between themselves. An example is a case where the parties disagreed over the wording to be inscribed on a deceased family member’s tombstone. The arbitrator took an inquisitorial approach which also enabled the family to reach agreement, thereby avoiding the determination of the arbitrator.
The benefits of mediation
Where there is an urgent need for decision, such as a care decision for an elderly parent, dispute resolution which assists the parties involved to develop a plan will save cost time and damage – including as much as possible the person who is the “subject” of the dispute. An example of a case where mediation may have avoided a rather unfortunate series of court cases is Carrington v Carrington  NZHC 505, where a family became deeply divided over the care of their mother who suffered from senile dementia. This went through the Family Court and then on appeal to the High Court. It showed a family who all had their mother’s best interests at heart, but fundamentally differed on where she should live. The financial and emotional cost must have been devastating.
Most will be very familiar with the devastating case, Takamore v Clarke  NZSC 116;  2 NZLR 733, which was splashed across the media. In spite of a number of court decisions, there was no resolution and the family remained unable to agree on the final resting place.
Recently a FairWay mediator assisted a family to decide on the funeral arrangements and burial place of a family member killed tragically in a car accident. This was done by phone, involving six family members and enabling the release of the body from the hospital so that the family member could be buried with all family engaged.
FairWay mediators have also had great success mediating disputes about wills and estates. In situations where the deceased has no will and different loved ones want different things, disputes can further complicate an already tough situation for the deceased’s loved ones. This is especially true if matters of religion and culture are at the heart of the issue. Not surprisingly, these differences can tear families apart. The skill of mediators who assist parties through careful questioning techniques to recognise their own positions, interests and needs as well as the interests and needs of others involved in the dispute will help families find common ground and sometimes even create a new pathway which will lead to the restoration of relationships and agreement.
Mediation can also bring closure.
In one such case that FairWay mediated, the mother had died and in her will had passed her home on to her caregiver. Her estranged only daughter – who hadn’t seen her mother for over 10 years due to mental health issues – wanted to contest the will, but after having spent several thousand dollars in lawyers’ fees was now out of money and emotionally drained. Having reached a standstill, the daughter approached us for mediation. We contacted the former caregiver who agreed to mediate.
The outcome was everything a mediator could hope for and life changing for the parties. Not only were cherished family photos returned, but the house was tidied up for sale (with the assistance of the daughter’s partner), sold and the profits shared between the parties. Stories were told of the mother’s latter years and the daughter got to understand that the “caregiver” was much more than a paid worker to her mother. The caregiver got to hear about the daughter’s disappointment over the loss of her relationship with her mother. The caregiver was able to give her some comfort from the fact that her mother never forgot about her. These are opportunities that could not occur through an adversarial process yet will have a profound effect on people’s lives. And for anyone who thinks that mediation has to be face-to-face, this mediation was all done by video conference.
Keri Morris email@example.com is a mediator, conflict coach and Head of Family Services at FairWay Resolution Ltd. Chris LaHatte firstname.lastname@example.org is a lawyer, mediator, restorative justice practitioner and arbitrator with his own private practice.
Last updated on the 29th November 2019