Family Law in Crisis.

According to The Australian of 11 December 2015, independent Senators John Madigan and David Leyonhjelm are among a group of senators who have called for a "root-and-branch review" of the family law system. Senator Madigan has been pushing for a radical overview of the system to make it less adversarial in nature, arguing the current system is causing "inexcusable damage" to children.

Senator Madigan urged the government to "adequately resource the court to deal with things in a more expedient manner and have people in it who are properly trained".

He said "the court needs to be better resourced than what it is and people operating in the area of family law need to be trained in this area".

Senator Madigan also wanted to see the court operate in a way that brought families together , rather than "blew them apart".

Senator Leyonhjelm said: "You can't expect a court system to operate for the benefit of the public if they have to wait extended periods of time because there aren't enough judges. That's a no -brainer."

Clearly the court has a resource problem.However good steps in reducing the current pressure would be to refer more matters to mediation, particularly those with modest pools and to introduce compulsory mediation of property matters before parties are able to initiate court proceedings.

It will be interesting to see how far the independent senators get with their call for "root-and -branch review".

Power Imbalances and Mediation

Wade (1984) states that power can “be broadly described as actual or perceived ability of one person to exert influence upon another person’s behaviour or thoughts”.*

Parties hold different types of power in their relationships such as economic, emotional, physical, and psychological, status, language and information.

Power is a dynamic rather than a static concept and can shift between parties in a negotiation or mediation.

Imbalances can also be identified in terms of gender, culture, one shot and repeat players, wealth, the legally and non-legally aided, the assertive and the inarticulate, the knowledgeable and the ignorant.

Past domestic violence and the possibility of actual or implied intimidation is an important area to look at in terms of power imbalances and whether mediation is appropriate however of course unless appropriate screening processes are in place, the information relating to domestic violence may only become evident in the course of the mediation.

Lack of knowledge is a primary source of power imbalance. It can be legal, financial or relate to some other aspect or implication.

Lawyers have an important role to play in assessing power imbalances and the appropriateness or otherwise of mediation.

Where there is a wide discrepancy between the parties in terms of power, mediation may not be suitable.

Mike Emerson
Co-Principal Brisbane Mediations



* Wade, J, “Forms of Power in Family Mediation and Negotiation” Australian Journal of Family Law. 1994, 2